>ENT  PROBLEMS  IN  ADMIRALTY 
JURISDICTION 


BY 
EDGAR  TREMLETT  FELL 


A  DISSERTATION 

Submitted  to  the  Board  of  University  Studies  of  The  Johns 

Hopkins  University  in  Conformity  with  the  Requirements 

for  the  Degree  of  Doctor  of  Philosophy 

1920 


BALTIMORE 
1922 


EXCHANGE 


RECENT  PROBLEMS  IN  ADMIRALTY  JURISDICTION 


RECENT  PROBLEMS  IN  ADMIRALTY 
JURISDICTION 


BY 
EDGAR  TREMLETT^gELL 


A  DISSERTATION 

Submitted  to  the  Board  of  University  Studies  of  The  Johns 

Hopkins  University  in  Conformity  with  the  Requirements 

for  the  Degree  of  Doctor  of  Philosophy 

1920 


BALTIMORE 
1922 


COPYRIGHT  1922  BY 
THE  JOHNS  HOPKINS  PRESS 


PKCSS  OF 

THC  NCW  CMA  PMINTINO  OO«*TANT 
LANCACTKK,  FA. 


CONTENTS 


Page 
PREFACE ix 

CHAPTER      I.     THE    CONSTITUTIONALITY    OF    STATE 
LEGISLATION  AFFECTING  ADMI- 
RALTY AND  MARITIME  MATTERS  .      1 1 
Introductory:  The  Sources  of  Admi- 
ralty and  Maritime  Jurisdiction 

in  the  United  States n 

The   Ancient   Jurisdiction   of   the 

Admiral 12 

Expansion   of   Federal   Admiralty 

Jurisdiction  Since  1879 1 6 

State  and  Federal  Legislation — 
Southern  Pacific  Company  vs. 
Marie  Jensen,  244  U.  S.,  205. . .  19 

Analysis  of  the  Opinion 21 

Discussion  of  the  Opinion  in  the 

Jensen  Case 27 

Effect  of  the  Jensen  Decision  in 
Matters     not     Involving     State 

Compensation  Acts 39 

The  Constitutionality  of  the  Act  of 
October  6,  1917,  known  as  the 
Amendment  to  the  Saving  Clause 

of  the  Judiciary  Act 45 

Pending  Federal  Seamen's  Compen- 
sation Acts 50 

CHAPTER    II.     JURISDICTIONAL  IMMUNITY  OF  PUBLIC 

VESSELS  AND  GOODS 54 

Principles  of  Exemption  from  Local 

Jurisdiction 56 

v 


CONTENTS 

The   Immunity   Accorded    Ships   of 

War 58 

Troop-Ships  and  Transports 62 

The  Pampa 63 

The  Maipo 63 

The  Extension  of  Immunity  to  Other 

Public  Vessels 64 

Instruments  of  Sovereignty 64 

Light-Ships 64 

The  Nature  of  the  Process  In  Rem.  65 
The  English  Method  of  Impleading 

the  Sovereign  in  Admiralty 69 

The  Immunity  of  Vessels  Owned  and 

Operated  by  Quasi-Sovereignties  69 

Municipal  Corporations 69 

A  State  of  the  United  States 71 

Political  Sub-divisions  of  Foreign 

Governments    71 

Government  Revenue  Cutters 72 

Public  Vessels  of  Sovereign  Engaged 
in  Business  of  Commercial  Char- 
acter    73 

English  Cases 73 

American  Cases 76 

The  Carlo  Poma 78 

Requisitioned  Ships 79 

The  Effect  of  Requisition  on  Char- 
ter Parties 79 

The    Immunity    of    Requisitioned 

Ships  from  Jurisdiction 80 

English  Cases 80 

The  Effect  of  Requisition 80 

American  Cases 81 

Foreign  Requisitioned  Vessels 81 

Vessels  Requisitioned  by  the  U.  S. 
Shipping  Board.    Act  of  Mar.  9, 

1920 84 


CONTENTS  Vll 

The  Immunity  of  Government  Owned 

Cargoes 89 

Set-Offs  Against  Government  Sub- 
mitting to  Jurisdiction 90 

The    American    Rule    Contrasted 

with  the  British  Rule 91 

The  Luigi  Criticised.     The  Release 

of  Owners  from  Bond 93 

CHAPTER  III.  JURISDICTION  OVER  FOREIGN  PRIVATE 
MERCHANT  VESSELS  AND  SEA- 
MEN    95 

The  Territoriality  of  Ships 96 

Criminal  Jurisdiction  over  Foreign 

Vessels    99 

On  the  High  Seas 100 

In    Territorial    Waters    of    the 

United  States 102 

Civil    Jurisdiction    over    Foreign 

Vessels  and  Seamen 105 

Effect   of   Treaty   Stipulations  on 

Jurisdiction 108 

Jurisdiction    in    Questions    Com- 

munis  Juris no 

The  Exercise  of  Judicial  Discretion 
in  Cases  between  Belligerents  in 

the  World  War 112 

Federal    Statutes   Affecting   Foreign 

Merchant  Vessels  and  Seamen. .    113 
Seamen's  Act  of  1915 118 


PREFACE 


Along  with  the  development  and  progress  of  the  American 
people  there  has  been  a  constant  evolution  of  law  in  an 
effort  to  keep  pace  with  the  advances  made.  This  evolution 
has  been  a  slow  one  in  most  instances.  In  1914  the  greater 
part  of  all  the  Admiralty  and  Shipping  law  of  the  United 
States  was  built  upon  and  dealt  with  conditions  arising  out 
of  the  old  clipper  ship  days.  For  nearly  a  half  century  the 
American  flag  had  disappeared  from  the  seas.  The  law  as 
it  stood  was  anachronistic.  With  the  building  of  the  enormous 
American  merchant  fleet  of  today,  the  law  was  again  called 
upon.  Many  and  sudden  changes  were  necessary,  both  legis- 
lative and  judicial.  So  rapid  and  complex  have  these  been, 
that,  as  yet,  great  uncertainty  prevails. 

A  large  field  for  research  and  study  has  opened  up.  With 
this  in  mind,  I  have  attempted  to  gather  up  some  of  the 
loose  ends  and  center  my  efforts  upon  certain  fields  which 
have  presented  particularly  difficult  problems  of  jurisdiction. 
These  have  been  treated  in  three  separate  chapters,  each  con- 
stituting a  complete  study,  yet  necessarily  related  to  each 
other  through  the  common  question  of  the  derivation  and 
extent  of  Federal  jurisdiction. 

I  am  particularly  indebted  to  Dr.  W.  W.  Willoughby  for 
his  many  suggestions  and  helpful  criticisms  of  this  work. 
United  States  District  Judge  John  C.  Rose,  of  Baltimore, 
very  kindly  offered  me  much  material,  which  was  made  use 
of,  and  as  well  pointed  out  some  of  the  minor  problems 
which  had  escaped  my  notice.  Professor  Calvert  Magruder, 
of  the  Harvard  Law  School,  has  given  much  of  his  time  in 
reading  the  proof  sheets  and  calling  attention  to  certain  court 
decisions  which  might  otherwise  have  been  overlooked. 

E.  T.  F. 

June,  1920. 

ix 


RECENT  PROBLEMS  IN   ADMIRALTY 
JURISDICTION 


CHAPTER  I 

THE  CONSTITUTIONALITY  OF  STATE  LEGISLATION  AFFECTING 
ADMIRALTY  AND  MARITIME  MATTERS 

Introductory:    The   Sources   of   Admiralty   and   Maritime 
Jurisdiction  in  the  United  States 

Ever  since  the  adoption  of  the  Federal  Constitution  in  1789 
a  conflict  has  been  waged  in  the  Supreme  Court  of  the  United 
States  over  the  nature  and  extent  of  the  admiralty  and  mari- 
time jurisdiction  of  the  State  Common  Law  Courts  as  dis- 
tinguished from  the  exclusive  jurisdiction  of  the  Federal 
District  Courts.  Indeed  it  can  almost  be  said  that  no  pro- 
vision of  the  American  Constitution  has  undergone  a  more 
picturesque  and  striking  exposition  and  development  than  has 
Article  III,  Section  II,  Clause  I,  which  provides  that  the 
judicial  power  of  the  United  States  shall  "  extend  ...  to  all 
cases  of  admiralty  and  maritime  jurisdiction."  The  whole 
history  of  the  expansion  of  American  Shipping  and  Naviga- 
tion is  reflected  in  a  long  series  of  decisions  handed  down  in 
an  effort  to  keep  pace  with  the  growing  demands  for  an  ade- 
quate body  or  system  of  law  to  cope  with  the  immense  and 
complex  number  of  cases  arising  under  this  provision. 

But  were  this  Constitutional  grant  of  power  the  sole  factor 
to  be  taken  into  consideration  in  determining  the  limits  and 
extent  of  admiralty  jurisdiction,  the  task  would  certainly  be 
a  far  simpler  one  than  it  is.  Immediately  after  the  adoption 
of  the  Constitution,  the  First  Congress  enacted  the  Judiciary 
Act  for  the  purpose  of  providing  a  Federal  Judicial  system 
in  conformity  with  the  express  grants  of  power  enumerated. 

ii 


12  RECENT  PROBLEMS  IN  ADMIRALTY  JURISDICTION 

Sections  24  and  56  of  the  Judicial  Code  vested  in  the  Federal 
Courts  exclusive  jurisdiction  "  of  all  civil  causes  of  admiralty 
and  maritime  jurisdiction  saving  to  suitors  in  all  cases  the 
right  of  a  common  law  remedy  where  the  common  law  is 
competent  to  give  it." 

Thus,  although  no  express  provision  to  that  effect  is  found 
in  the  Constitution,  a  concurrent  jurisdiction  between  the 
Federal  District  Courts  and  the  State  Common  Law  Courts 
is  established  in  certain  classes  of  cases.  It  is  this  provision 
of  the  Judiciary  Act  that  has  given  rise  to  suits  in  which 
important  constitutional  questions  have  been  involved.  This, 
so  called,  saving  clause  transferred  to  American  jurispru- 
dence the  historical  contest  for  jurisdiction  that  was  carried 
on  in  English  law  between  the  Courts  of  Admiralty  and  the 
Courts  of  Common  Law. 

For  the  purpose  of  giving  a  proper  historical  background 
and  in  order  to  understand  the  American  decisions  as  well 
as  the  attitude  of  the  Supreme  Court  in  those  cases  which 
have  marked  the  boundary  line  between  the  concurrent  juris- 
diction of  the  State  Courts  and  the  exclusive  jurisdiction  of 
the  Federal  Courts,  a  short  account  of  the  history  of  the 
acquisition  of  jurisdiction  by  the  common  law  courts  of 
England  in  what  were  anciently  considered  solely  admiralty 
matters,  will  prove  of  value.  And  this  will  also  serve  to 
explain  the  action  of  the  First  Congress  in  enacting  the  saving 
clause,  the  constitutionality  of  which  has  never  been  directly 
questioned.  In  fact  its  validity  has  been  repeatedly  defended 
by  the  most  eminent  jurists. 

The  Ancient  Jurisdiction  of  the  Admiral. — "The  juris- 
diction of  the  English  Admiralty,  as  actually  exercised  in  its 
earliest  days,  and  for  centuries  afterwards,  was  most  ex- 
tended, various,  and  ample  embracing  all  maritime  causes  of 
action,  civil  and  criminal,  of  contract  and  of  tort,  and  all 
causes  of  action  arising  on  sea  or  beyond  sea  in  foreign 
countries."  * 

1  The  Emulous,  I  Gal.,  563 ;  Benedict,  Admiralty,  p.  27. 


CONSTITUTIONALITY  OF  STATE  LEGISLATION  13 

This  ancient  jurisdiction  of  the  Admiralty  was  not  derived 
from  statutes,  but  from  the  acts  and  records  of  prerogative 
and  from  commissions  and  ordinances  of  the  kings.  So  lib- 
eral had  been  the  grants  of  jurisdiction  to  the  Admiral  on  the 
part  of  the  early  monarchs,  and  the  Admiralty  had  gained 
such  strength  that  it  was  emboldened  to  encroach  upon  other 
jurisdictions  and  to  usurp  that  which  did  not  belong  to  it. 

The  first  successful  complaint  against  this  usurpation  came 
in  the  year  1389,  and  a  statute  of  that  year2  attempted  to 
limit  the  jurisdiction  of  the  Admiral  strictly  to  things  "  done 
upon  the  sea."  Thus  the  Common  Law  Courts  gained  some 
of  the  original  jurisdiction  of  the  Admiralty,  and  a  large 
number  of  actions  ex  contractu,  where  the  contract,  although 
maritime  in  nature,  was  made  and  entered  into  on  land, 
passed  over  to  the  exclusive  jurisdiction  of  the  Common  Law 
Courts. 

A  second  statute,3  two  years  later,  drove  the  Admiralty 
jurisdiction  from  its  claims  over  the  sea  between  high  and 
low  water  mark,  when  the  tide  was  out,  and  from  its  claims 
in  the  tideless  rivers,  streams  and  ponds. 

From  this  time  on,  prohibitions  of  jurisdiction  were  re- 
peatedly sent  from  Westminster  to  the  Admiralty  Court  and 
these  furnished  the  immediate  cause  for  the  long  and  bitter 
strife  between  the  Common  Law  Courts  and  the  Admiralty, 
which  lasted  through  the  sixteenth  and  seventeenth  cen- 
turies, and  which  was  so  characterized  by  jealousy  and  pas- 
sion. It  is  true  that  a  temporary  truce  was  obtained  in  1575 
by  an  agreement  made  on  the  subject  of  prohibitions  in  which 
the  Common  Law  Judges  made  several  concessions  to  the 
requests  of  the  Admiralty.  The  tone  of  this  agreement, 
however,  was  such  that  it  would  lead  to  the  supposition  that 
the  Common  Law  Courts  were  asserting  a  legislative  or  pre- 
rogative power  in  the  matter  of  jurisdiction. 

Under  the  dominance  of  Lord  Coke,  the  Common  Law 
Courts  denied  the  validity  of  the  agreement  of  1575  and  they 

2  13  Richard  II,  cap.  5. 
8  15  Richard  II,  cap.  3. 


14  RECENT  PROBLEMS   IN  ADMIRALTY  JURISDICTION 

imperiously  took  over  more  and  more  of  the  jurisdiction  of 
the  Admiralty  in  maritime  matters.  This  led  to  a  formal 
complaint  on  the  part  of  the  admiralty  in  1611  in  which  a 
long  list  of  grievances  was  set  forth.  An  examination  of  the 
chief  of  these  grievances  presented  by  the  Admiralty  will 
reveal  the  extent  to  which  it  was  claimed  that  its  original 
jurisdiction  had  been  encroached  upon  by  the  Courts  of 
Westminster. 

The  first  of  these  was  to  the  effect  that  the  Common  Law 
Courts  had  assumed  jurisdiction  over  the  maritime  contracts 
by  the  use  of  a  legal  fiction  that  all  these  contracts  were 
written  or  made  on  land  and  hence  beyond  the  Admiralty's 
cognizance. 

The  English  courts  had  even  extended  this  fiction  to  for- 
eign contracts  and  had  continually  denied  to  the  Admiralty 
the  causes  arising  under  them. 

In  the  matter  of  practice  and  procedure,  the  right  to  take 
recognizances  and  stipulations  was  forbidden  on  the  ground 
that  the  Admiralty  was  not  a  Court  of  Record  and  hence 
without  the  necessary  power  to  take  them. 

The  Admiralty  had  been  deprived  of  jurisdiction  over 
charter  parties,  a  strictly  maritime  contract. 

The  jurisdiction  over  inland  waters,  although  tidal,  had 
been  denied  on  the  ground  that  they  were  really  causes  which 
arose  within  the  "  body  of  the  country  "  and  triable  only  in 
common  law  courts.  However,  nothing  was  done  to  remedy 
these  grievances  until  1632  when  Charles  I  and  his  Council, 
by  a  formal  agreement,  granted  concurrent  jurisdiction  to  the 
Admiralty  Courts  (i)  in  cases  of  contracts  made  on  or  be- 
yond the  seas;  (2)  in  suits  for  freight,  mariner's  wages, 
breach  of  charter  parties  for  foreign  voyages;4  (3)  in  suits 
for  building,  repairs,  salvage  or  provision  of  ships'  neces- 
saries, provided  that  the  action  when  brought  in  Admiralty 
should  only  be  one  in  rem. 

4  However,  i-n  suits  on  charter  parties  where  the  penalty  was  de- 
manded, or  where  the  question  was  as  to  the  existence  of  the  charter 
party,  or  whether  a  release  had  been  granted,  the  jurisdiction  of  the 
common  law  courts  remained  exclusive. 


CONSTITUTIONALITY  OF  STATE  LEGISLATION  15 

This  agreement  also  gave  jurisdiction  to  the  Admiralty  to 
inquire  into  and  remove  hindrances  and  obstructions  in 
navigable  rivers,  and  to  entertain  suits  on  contracts  and  torts 
arising  thereon  below  the  first  bridges.  The  power  to  issue 
the  writ  of  habeas  corpus  for  parties  in  the  above-mentioned 
suits  was  granted  to  the  Admiralty. 

During  the  period  of  the  Protectorate  the  Admiralty  en- 
joyed the  benefits  of  an  even  more  enlarged  jurisdiction  as  a 
consequence  of  the  ordinance  of  1648,  but  after  the  Restora- 
tion a  general  reversal  took  place  and  even  the  Agreement  of 
1632  went  non-observed. 

And  so  it  was,6  that  at  the  time  of  the  American  Revolu- 
tion a  very  restricted  and  narrow  platform  of  Admiralty 
jurisdiction  remained,  so  that  in  England  the  Court  was 
confined  to  the  following  very  inconsiderable  class  of  cases : — 
to  enforce  judgments  of  foreign  courts  of  admiralty,  where 
the  person  or  the  goods  were  within  the  reach  of  the  court ; 
mariners'  wages,  where  the  contract  was  not  under  seal,  and 
was  made  in  the  usual  form;  bottomry,  in  certain  cases  and 
under  many  restrictions ;  salvage,  where  the  property  was  not 
cast  on  shore ;  cases  between  part  owners  disputing  about  the 
employment  of  the  ship;  collisions  and  injuries  to  property 
or  persons  on  the  high  seas ;  droits  of  the  admiralty. 

The  system  of  admiralty  law  as  administered  in  the  Col- 
onies in  America  was  substantially  the  same  as  that  of  Eng- 
land and  courts  of  admiralty  jurisdiction6  were  established  in 
the  several  colonies.  The  framers  of  the  Constitution  were 
then  well  aware  of  the  ancient  controversy  between  the  com- 
mon law  courts  and  the  courts  of  admiralty  over  the  extent 
of  the  jurisdiction  of  the  latter.  It  was  undoubtedly  difficult 
for  them  to  conceive  of  an  exclusive  admiralty  jurisdiction 
without  a  concurrent  jurisdiction  in  the  common  law  courts 
which  were  to  continue  in  America  under  the  new  govern- 
ment. These  same  Courts,  under  the  British  rule,  had  long 

5  Benedict,  Adm.,  p.  55 ;  see  also  3  Black  Com.,  106,  and  Waring 
et  al  vs.  Clarke,  46  U.  S.,  441-453. 

6  Called  Vice  Admiralty  Courts,  created  by  commissions  from  the 
British  High  Court  of  Admiralty. 


16  RECENT  PROBLEMS   IN  ADMIRALTY  JURISDICTION 

had  the  undoubted  right  to  try  maritime  cases  such  as  arose 
in  suits,  for  mariners'  wages,  on  policies  of  marine  insurance, 
and  in  other  actions  ex  contractu,  and  in  actions  of  tort  aris- 
ing upon  the  sea. 

And  so  it  is  that,  "  the  grant  of  judicial  power  in  cases  of 
admiralty  and  maritime  jurisdiction  never  has  been  construed 
as  excluding  the  jurisdiction  of  the  courts  of  common  law 
over  civil  causes  that,  before  the  Constitution,  were  subject 
to  the  concurrent  jurisdiction  of  the  courts  of  admiralty  and 
the  common  law  courts.  The  first  Congress  so  construed  it, 
as  the  saving  clause  in  the  Judiciary  Act  conclusively  shows."  7 

The  effect  of  the  enactment  of  this  saving  clause  is  to  per- 
mit suitors,  at  the  present  time,  by  choice  to  try  their  cases 
in  the  common  law  courts  of  the  state  instead  of  one  of  the 
Federal  District  Courts,  provided  that  the  common  law  offers 
a  remedy  which  it  is  competent  to  give.  The  interpretation 
of  this  provision  has  led  to  a  number  of  opinions  by  the 
Supreme  Court  of  the  United  States. 

But  before  examining  this  concurrent  jurisdiction  of  the 
State  common  law  courts,  the  author  believes  that  a  brief 
review  of  the  history  of  the  growth  and  expansion  of  the 
admiralty  jurisdiction  of  the  United  States  Courts  since  1789 
will  in  itself  serve  to  clarify  some  of  the  jurisdictional  diffi- 
culties which  will  appear  in  the  subsequent  discussion. 

Expansion  of  Federal  Admiralty  Jurisdiction  Since 
1789* — There  are  two  broad  classes  of  cases  falling  within 
the  federal  admiralty  jurisdiction :  first,  those  depending  on 
locality,  that  is,  arising  upon  the  high  seas  and  other  navigable 
water,  and  second,  those  depending  upon  subject  matter. 

At  the  adoption  of  the  Federal  Constitution,  it  had  become 
the  settled  law  of  England,  that  the  only  waters  over  which 
the  Admiralty  had  jurisdiction  were  those  where  the  tide 
ebbed  and  flowed  and  which,  being  tidal  waters,  were  outside 
the  body  of  any  country,  that  is  to  say,  were  waters  which 

T  From  the  opinion  of  Mr.  Justice  Pitney  in  the  Jensen  Case,  244 
U.  S.,  205. 

8  The  material  for  this  section  is  largely  drawn  from  the  notes  of 
lectures  by  Judge  John  C.  Rose  given  in  the  University  of  Mary- 
land Law  School,  Baltimore,  Md.,  1916-1917. 


CONSTITUTIONALITY   OF   STATE  LEGISLATION  17 

were  not  within  the  territorial  bounds  of  any  country.  It  is 
a  geographical  fact  that  in  England  those  rivers  in  which  the 
tide  ebbs  and  flows  are  navigable  and  that  no  others  are. 
Until  the  great  inland  navigable  waters  in  the  United  States 
were  opened  up  to  commerce  the  courts  in  this  country  had 
no  reason  to  inquire  whether  the  English  rule  rested  upon 
any  reasonable  basis.  In  1825  and  during  the  next  twenty 
years,  the  Supreme  Court  and  the  District  Courts,  in  repeated 
decisions,  declined  to  extend  the  admiralty  jurisdiction  to 
non-tidal  waters. 

But  finally,  in  1853,  the  Supreme  Court  in  the  Genesse 
Chief 9  reached  the  conclusion  that  the  English  rule  which 
made  a  distinction  between  tide  waters  and  waters  which 
were  not  tide  waters  meant  the  same  thing  as  a  distinction 
between  navigable  and  non-navigable  waters  and  that  the  lat- 
ter was  the  true  rule  and  that  to  adhere  to  the  English  tidal 
rule  was  to  mistake  shadow  for  substance.  Thus  jurisdiction 
in  this  country  was  made  dependent  upon  the  navigable  char- 
acter of  the  water,  and  the  settled  law  now  is,  that  the  admi- 
ralty jurisdiction  extends  over  all  waters  which  are,  in  fact, 
navigable  for  any  purpose  of  commerce,  and  over  which  it  is 
possible  to  make  some  part  of  a  journey  which  from  them 
may  be  continued  by  water  to  other  states  or  the  high  seas.10 
This  throws  open  to  federal  jurisdiction  not  only  the  in- 
land rivers  and  lakes  but  the  canals  as  well,  whether  those 
waters  are  entirely  within  the  bounds  of  a  particular  state 
or  not. 

However  it  is  by  no  means  essential  that  the  particular 
transaction  over  which  the  admiralty  jurisdiction  is  exercised 
shall  have  anything  to  do  with  commerce  of  any  kind.  If  the 
waters  may  be  used  for  commerce  the  jurisdiction  attaches 
to  all  the  transactions  which  concern  their  navigation,  what- 
ever may  be  the  purposes  for  which  the  navigation  is,  in  fact, 
carried  on. 

Furthermore,  the  legislative  power  of  Congress  was  thus 
greatly  extended.  It  is  undoubtedly  true  that  in  the  early 

9  12  How.,  443. 

10  The  Daniel  Ball,  10  Wall.,  557- 


1 8  RECENT  PROBLEMS   IN  ADMIRALTY  JURISDICTION 

history  of  the  United  States  both  Congress  and  the  courts 
based  the  federal  authority  to  legislate  with  reference  to 
matters  of  maritime  interest  upon  the  commerce  clause  of  the 
Constitution.  In  none  of  the  early  cases  raising  the  question 
of  the  power  of  Congress  is  the  grant  of  judicial  power  in 
Article  3,  Section  2  invoked  as  recognizing  an  implied  legis- 
lative power. 

But  in  later  cases  Congress  is  explicitly  recognized  as  hav- 
ing a  legislative  power  flowing  directly  from  the  grant  to  the 
federal  courts  of  admiralty  and  maritime  jurisdiction.  Quot- 
ing from  Ex  parte  Garnett : u 

It  is  unnecessary  to  invoke  the  power  given  to  Congress  to  regu- 
late commerce  with  foreign  nations,  and  among  the  several  states,  in 
order  to  find  authority  to  pass  the  law  in  question.  The  Act  of  Con- 
gress which  limits  the  liability  of  ship  owners  was  passed  in  amend- 
ment of  the  maritime  law  of  the  country  and  the  power  to  make 
such  amendment  is  co-extensive  with  that  law.  It  is  not  confined 
to  the  boundaries  or  class  of  subjects  which  limit  and  characterize 
the  power  to  regulate  commerce,  but,  in  maritime  matters,  it  extends 
to  all  matters  and  places  to  which  the  maritime  law  extends.12 

We  come  now  to  consider  the  jurisdiction  as  dependent 
upon  subject  matter.  Speaking  generally,  any  tort  committed 
on  navigable  waters  of  the  United  States  may  give  rise  to  a 
case  within  the  Admiralty  jurisdiction  if  it  be  a  tort  having 
some  relation  to  a  vessel  or  its  owners.  The  test  of  juris- 
diction is  now  asserted  to  be  the  locality  of  the  person  or 
thing  injured  and  not  the  locality  of  the  origin  of  the  injury.13 

And  the  Admiralty  in  this  country  has  jurisdiction  over 
matters  of  contract,  which  the  courts  hold  to  be  maritime  in 
their  nature.  The  place  of  the  execution  of  the  contract  or 
of  the  performance  is  immaterial.  The  primary  rule  is  that 
in  order  that  a  contract  shall  be  maritime,  it  shall,  as  to  its 
subject  matter,  have  some  relation  to  or  connection  with  a 
ship.  It  might  have  such  relation  and  not  be  maritime,  but 
it  is  not  maritime  unless  it  has. 

11 141  U.  S..  i. 

12  See  also  Providence  &  N.  Y.  SS.  Co.  vs.  Hill  Mfg.  Co.,  109  U. 
S.,  578,  Willoughby  on  the  Constitution,  vol.  ii,  p.  1118. 

3  The  Black  Heath,  195  U.  S.,  361 ;  Poughkeepsie,  162  Fed.,  494. 


CONSTITUTIONALITY  OF  STATE  LEGISLATION  19 

One  leading  exception  must  be  noted :  the  American  courts 
follow  the  old  English  rule  that  a  contract  for  work  and 
materials  in  building  a  ship  is  not  one  within  the  admiralty 
jurisdiction,  whereas  on  the  other  hand  a  contract  for  repairs 
or  alteration  is. 

A  ship  within  the  admiralty  meaning  is  anything  which  is 
intended  to  be  used  for  navigation  or  which,  whether  so  in- 
tended or  not,  is  capable  of  being  navigated,  and  is,  at  the 
time  of  the  happening  of  the  events  out  of  which  the  con- 
troversy arose,  actually  being  navigated.  If  it  is  not  intended 
for  navigation  and  is,  at  the  time  of  the  happening  of  events 
out  of  which  the  controversy  arose,  not  actually  being  navi- 
gated, it  is  not  a  ship  within  the  admiralty  meaning  of  the 
word. 

Nevertheless,  a  ship  does  not  cease  to  be  subject  to  admi- 
ralty jurisdiction  while  lying  at  a  wharf  or  in  a  dry  dock  or 
while  resting  on  the  bottom  during  low  tide.  A  boat  in  an 
unfinished  condition  or  one  wholly  unfit  for  navigation  is  not 
a  ship  within  the  meaning  of  Admiralty. 

State  and  Federal  Legislation:  Southern  Pacific  Company  vs. 
Marie  Jensen,  244  U.  S.,  205 

This  brief  survey  of  the  field  of  admiralty  jurisdiction 
therefore  brings  us  back  to  the  question  of  the  concurrent 
jurisdiction  of  the  State  Courts  which  is  saved  to  them  in  all 
cases  where  the  common  law  is  competent  to  give  a  common 
law  remedy. 

One  of  the  particularly  interesting  points  which  has  arisen 
is  as  to  what  was  meant  by  the  phrase  "common  law"  as 
used  in  the  above-mentioned  saving  clause  and  still  further 
as  to  how  far  state  legislation  can  change  this  "  common  law  " 
so  as  to  create  new  rights  and  remedies  enforceable  within 
the  meaning  of  the  saving  clause. 

The  most  important  case  within  the  last  decade  involving 
the  extent  of  the  concurrent  jurisdiction  of  the  State  Com- 
mon-law Courts  and  particularly  raising  the  question  as  to 


2O  RECENT   PROBLEMS   IN  ADMIRALTY   JURISDICTION 

whether  the  Constitution  and  laws  of  the  United  States  pre- 
vent a  state  court  of  common  law  from  applying  the  State 
Statutes  in  an  action  in  personam  arising  upon  navigable 
water  within  the  State,  there  being  no  act  of  Congress  appli- 
cable to  the  controversy,  is  the  case  of  The  Southern  Pacific 
Co.  vs.  Marie  Jensen,  decided  May  21,  1917. 

On  August  15,  1914,  Christen  Jensen,  a  stevedore,  was 
accidently  killed  while  operating  a  small  electric  freight  truck 
in  the  process  of  unloading  the  cargo  of  the  steamship  El 
Oriente,  owned  and  operated  by  the  Southern  Pacific  Com- 
pany. At  the  time  of  the  accident  the  ship  was  moored  to 
a  pier  in  the  North  River,  New  York,  lying  in  navigable 
waters  of  the  United  States. 

An  award  was  made  to  Marie  Jensen,  the  widow,  under  the 
Workman's  Compensation  Act  of  New  York  State  against  the 
Southern  Pacific  Company.  The  validity  of  this  award  was 
contested  by  the  Company  in  a  suit  brought  in  a  State  Court 
of  New  York  State,  the  appeal  from  which  was  finally  taken 
to  the  Supreme  Court  of  the  United  States. 

The  Supreme  Court  by  an  opinion  of  five  to  four  reversed 
the  award  made  by  the  New  York  Court  and  held  that  the 
New  York  Workman's  Compensation  Act,  so  far  as  it  ap- 
plied to  employees  whose  work  was  maritime  in  nature,  was 
unconstitutional.  Mr.  Justice  McReynolds  delivered  the 
opinion  of  the  court.  Mr.  Justice  Holmes  and  Mr.  Justice 
Pitney  each  wrote  dissenting  opinions  which  were  concurred 
in  by  Mr.  Justices  Brandeis  and  Clarke. 

This  opinion  in  the  Jensen  case  constituted  in  the  minds  of 
many  lawyers  a  most  striking  departure  from  the  general 
principles  of  admiralty  and  maritime  jurisprudence  hereto- 
fore developed  under  the  American  system.  And  upon  the 
other  hand,  among  those  supporters  of  the  majority  opinion 
of  the  court,  it  was  usually  conceded  that  this  opinion,  grant- 
ing its  correctness,  was  a  step  considerably  in  advance  of  any 
that  the  Supreme  Court  had  before  taken  in  similar  cases. 
The  far-reaching  results  of  this  opinion  were  immediately 


CONSTITUTIONALITY  OF  STATE  LEGISLATION  21 

recognized  and  Congress  at  the  earliest  opportunity  passed 
an  Act  intended  to  overrule  and  nullify  the  effect  of  the 
Jensen  decision.  How  far  this  Act  was  successful  in  accom- 
plishing its  purpose  is  left  for  a  later  treatment.14  Suffice  it 
to  say  that  the  principles  and  precedents  that  were  enunciated 
by  the  Court  in  the  Jensen  case  still  bear  the  weight  of 
authority  in  a  consideration  of  the  proper  law  governing  the 
constitutionality  of  state  legislation  affecting  maritime  mat- 
ters. 

A  determination,  then,  of  the  legal  factors  which  will,  in 
the  future,  determine  the  constitutionality  of  state  legislation 
in  similar  matters,  such  as  State  Old  Age  Pension  Acts  and 
Unemployment  Acts  when  extended  to  maritime  employees, 
can  only  be  obtained  by  a  careful  analysis  of  the  majority 
opinion  as  written  by  Mr.  Justice  McReynolds. 

Analysis  of  the  Opinion. — The  first  general  principle  laid 
down  in  the  decision  is  that  Congress  has  paramount  power, 
under  the  constitutional  grant,  to  fix  and  determine  the  mari- 
time law  which  shall  prevail  throughout  the  country,  and  sec- 
ond, that,  in  the  absence  of  a  controlling  Federal  Statute,  the 
general  maritime  law,  as  accepted  by  the  Federal  Courts,  is 
applied. 

However,  the  Court  is  next  forced  to  admit  that  state 
legislation  to  some  extent  may  change,  modify,  or  affect  the 
general  maritime  law,  for  it  had  formerly  held  that  a  State 
law  of  Pennsylvania  regulating  pilotage  fees  was  enforceable 
in  the  absence  of  any  conflicting  statute.  This  was  on  the 
ground  that  the  mere  grant  of  the  power  to  regulate  com- 
merce did  not  forbid  the  States  from  passing  laws  to  regulate 
pilotage  when  Congress  had  not  itself  acted.15 

The  second  admission  is,  that  in  certain  cases,  a  state  law 
may  even  give  a  substantial  right  of  such  a  character  that  it 
will  be  enforced  in  the  Federal  Admiralty  Court,  as,  for  in- 
stance, a  right  arising  under  the  pilotage  law  of  New  York 
State.16 

14  See  page  45. 

15  Cooley  vs.  Board  of  Wardens,  12  Howard,  299  (1851). 
«  Ex  parte  McNeil,  13  Wall.,  236  (1871). 


22  RECENT  PROBLEMS  IN  ADMIRALTY  JURISDICTION 

The  next  instance  given  of  a  state  law  which  changed  the 
general  maritime  law  was  in  the  well-known  Lottawanna 
case.17  It  was  there  decided  that  the  general  maritime  law 
did  not  give  a  lien  on  a  ship  for  supplies  furnished  in  her 
home  port  but  that  a  law  of  the  State  of  Louisiana  giving  a 
lien  in  such  a  case  would  be  enforced  in  the  Federal  Court, 
provided  that  all  requirements  of  the  state  law  had  been  com- 
plied with  in  recording  the  lien.  This  doctrine  was  again 
restated  and  adhered  to  in  1892  by  Mr.  Justice  Gray  in  the 
J.  E.  Rumbell  Case.18 

Another  and  far-reaching  change  in  the  general  maritime 
law,  it  is  conceded,  was  permitted  when  a  Delaware  law  pro- 
viding a  right  of  recovery  for  death  arising  from  tort  was 
enforced  in  a  Federal.  Admiralty  Court  even  when  the  death 
had  occurred  as  a  result  of  a  collision  on  the  high  seas,  where 
both  ships  belonged  to  corporations  of  the  State  of  Delaware. 
The  court,  through  Mr.  Justice  Holmes,  explicitly  stated  that 
Delaware  had  the  power  to  enact  the  law  and  extend  it  to  its 
ships  on  the  high  seas,  since  Congress  had  not  acted.19  And 
in  a  subsequent  case,  the  French  law,  giving  a  right  of  action 
for  wrongful  death,  was  enforced  in  a  United  States  admi- 
ralty court  against  a  French  transatlantic  navigation  com- 
pany, even  though  the  general  maritime  law  as  applied  by 
our  courts  gave  no  such  right.20 

Just  so  far,  says  Mr.  Justice  McReynolds,  have  the  several 
states  been  permitted  to  enact  laws  altering  the  general -mari- 
time law.  Then  there  follows  a  line  of  cases  in  which  the 
Supreme  Court  has  on  the  other  hand  declared  certain  state 
laws  unconstitutional  in  that  they  contravened  an  applicable 
Act  of  Congress  or  affected  the  general  maritime  law  beyond 
certain  limits. 

Thus,  there  is  established  an  indefinite  line  of  demarcation 
between  these  two  classes  of  cases,  beyond  which  a  state  can- 
not go  in  enacting  maritime  legislation  or  legislation  bearing 

17  The  Lottawanna,  21  Wall.,  558  (1874). 
w  148  U.  S.,  i. 

19  The  Hamilton,  207  U.  S.,  398. 

20  La  Bourgogne,  210  U.  S.,  97. 


CONSTITUTIONALITY  OF  STATE  LEGISLATION  23 

upon  maritime  matters.  This  second  forbidden  class  is  illus- 
trated by  a  case  in  which  a  state  statute  of  California  created 
the  right  of  an  action  in  rem  against  the  vessel  for  breach  of 
a  maritime  contract.  The  attempt  to  establish  this  right  in 
one  of  the  state  common  law  courts  was  made  but  the  Su- 
preme Court  held  that  the  law  was  unenforceable  in  the  state 
court  in  that  it  attempted  to  invest  that  court  with  a  process 
strictly  and  exclusively  of  an  admiralty  nature.  The  Com- 
mon Law  Court  had  no  jurisdiction  under  the  saving  clause 
as  "it  is  not  a  remedy  in  the  common  law  courts  which  is 
saved,  but  a  common  law  remedy.  A  proceeding  in  rem,  as 
used  in  the  Admiralty  Courts,  is  not  a  remedy  afforded  by  the 
common  law;  it  is  a  proceeding  under  the  civil  law.  When 
used  in  the  common  law  courts,  it  is  given  by  statute."21 
The  next  case  cited  in  support  of  this  rule  is  the  American 
S.  B.  Co.  vs.  Chase,22  decided  in  1872.  This  citation  must 
have  been  made  by  McReynolds  solely  for  the  following 
statement  from  Justice  Clifford's  opinion,  since  the  real  im- 
port of  the  case  seems  to  have  been  entirely  overlooked.23 
On  page  530  there  is  the  dictum  that,  "Jurisdiction  to  en- 
force maritime  liens  by  proceedings  in  rem  is  exclusive  in  the 
admiralty  courts.  State  Courts  are  incompetent  to  afford  a 
remedy  in  such  a  case  as  they  do  not  possess  the  power  to 
issue  the  appropriate  process  to  enforce  the  lien." 

Another  type  of  state  statutes  which  come  within  the  for- 
bidden second  class  of  regulations,  that  is,  those  that  are 
deemed  to  go  beyond  the  line  of  demarcation  of  the  concur- 
rent jurisdiction  of  the  State  Courts,  can  be  seen  in  the  case24 
where  a  Washington  State  law  creating  a  lien  on  foreign 
vessels  for  work  done  or  materials  furnished  was  not  en- 
forced in  a  Federal  Admiralty  Court.28 

Then  also  in  a  subsequent  case,26  the  local  law  of  New 
York  as  established  in  certain  New  York  State  decisions  was 

21  The  Moses  Taylor,  4  Wall.,  411. 

22  16  Wall.,  522. 

23  See  below,  page  31. 

24  The  Roanoke,  189  U.  S.,  185. 

5  For  a  discussion  of  the  opinion  in  this  case,  see  pages  35,  36. 
26  Workman  vs.  New  York,  179  U.  S.,  552. 


24  RECENT  PROBLEMS   IN  ADMIRALTY  JURISDICTION 

held  to  abrogate  the  general  maritime  law  in  the  field  of 
maritime  tort  law,  and  hence  the  state  decisions  could  not  be 
applied  in  an  admiralty  case  brought  in  the  Federal  Court  in 
which  it  was  attempted  to  set  up  the  defences  recognized  by 
the  New  York  local  law  in  that  particular  class  of  maritime 
torts. 

After  this  outline  of  the  general  scope  of  these  two  main 
classes,  the  constitutional  and  the  unconstitutional  state  laws, 
and  the  attempt  to  draw  a  line  between  them  by  the  state- 
ment that  "no  such  legislation  is  valid  if  it  contravenes  the 
essential  purpose  expressed  by  an  Act  of  Congress,  or  works 
material  prejudice  to  the  characteristic  features  of  the  gen- 
eral maritime  law,  or  interferes  with  the  proper  harmony  and 
uniformity  of  that  law  in  its  international  and  interstate  re- 
lations," the  majority  opinion  in  the  Jensen  case  impliedly 
states  as  its  chief  proposition  that  the  New  York  Workman's 
Compensation  Act  falls  within  this  second  class  and  is  there- 
fore unconstitutional  so  far  as  it  applies  to  workmen  engaged 
in  maritime  occupations.  The  inference  is  that  workman's 
compensation  is  a  matter  requiring  uniform  federal  legisla- 
tion, when  it  applies  to  maritime  pursuits,  and  that  the  State 
of  New  York  had  gone  too  far  in  applying  its  own  compensa- 
tion law  where  only  a  federal  law,  if  it  existed,  could  be 
applied. 

Having  thus,  without  any  definitely  expressed  reasoning, 
relegated  the  matter  of  workmen's  compensation  to  the  class 
of  laws  requiring  national  legislation  and  therefore  prohibited 
to  the  States,  a  comparison  is  made  of  cases  arising  in  matters 
of  interstate  commerce,  in  which  state  legislation  has  been 
held  unconstitutional  on  similar  grounds.  The  opinion  as- 
sumes that  the  same  principles  that  have  been  applied  in  these 
cases  will  be  applicable  to  the  concurrent  jurisdiction  problem 
in  admiralty  and  maritime  matters. 

Hence,  in  support  of  the  unconstitutionality  of  the  New 
York  Workman's  Compensation  Act,  a  convenient  quotation 
from  one  of  the  interstate  commerce  cases27  is  selected : 

27  Bowman  vs.  Chicago  &  N.  W.  R.  Co.,  125  U.  S.,  465. 


CONSTITUTIONALITY  OF  STATE  LEGISLATION  25 

"where  the  subject  is  national  in  its  character,  and  admits 
and  requires  uniformity  of  regulation,  affecting  alike  all  the 
states  .  .  .  Congress  can  alone  act  upon  it.  ...  The  absence 
of  any  law  of  Congress  on  the  subject  is  equivalent  to  its 
declaration  that  commerce  in  that  matter  shall  be  free."  A 
citation  of  references  to  two  other  interstate  commerce  cases28 
completes  this,  the  second  main  argument  in  the  case ;  that  is, 
the  analogy  to  the  limitations  imposed  on  the  States  where 
matters  of  interstate  commerce  are  involved.29 

The  third  main  argument  of  the  Jensen  opinion  might  be 
entitled  the  Practical  Argument,  and  is  to  this  effect.  If 
one  State  can  enact  such  a  law  as  New  York  has,  other  States 
can  likewise  subject  foreign  ships  to  local  laws.30  The  con- 
sequence would  be  the  destruction  of  the  very  uniformity  in 
respect  to  maritime  matters  which  the  Constitution  was  de- 
signed to  establish.  And  it  is  implied  that  the  condemnation 
of  the  law  of  the  State  of  Washington  in  the  Roanoke  case, 
which  attempted  to  create  a  materialman's  lien  on  a  foreign 
vessel,  was  founded  upon  this  same  argument,  that  it  would 
result  in  a  lack  of  necessary  uniformity.31 

The  fourth  point  of  the  decision  was,  that  the  Jensen  case 
did  not  come  within  the  saving  clause  because  the  remedy 
which  the  New  York  Compensation  Statute  gave  was  not  one 
known  to  the  common  law.  This  would  mean  apparently 
that  a  state  court,  in  a  case  brought  within  its  concurrent 
jurisdiction,  can  not  apply  statutory  law,  but  only  the  common 
law  presumably  as  it  existed  at  some  previous  time,  in  other 
words,  state  statutes  cannot  be  considered  a  part  of  the  com- 
mon law  or  capable  of  changing  the  common  law. 

To  establish  this  contention,  the  opinion  cites  the  case  of 
the  Hine  vs.  Trevor32  in  which  a  collision  occurred  on  the 

28  Vance  vs.  Vandercook  Co.,  170  U.  S.,  438;  Distilling  Co.  vs. 
Western  Maryland  R.  Co.,  242  U.  S.,  311. 

29  For  discussion  of  this  analogous  reasoning  see  below,  page  33. 

30  Note  the  New  York  Workman's  Compensation  Act  in  no  way 
subjects  the  ship  itself  to  local  law. 

31  See  below,  page  35. 

32  4  Wall.,  555- 


26          RECENT  PROBLEMS  IN  ADMIRALTY  JURISDICTION 

Mississippi  River  and  the  boat  Hine  was  damaged.  An 
Iowa  statute  gave  a  lien  against  the  boat  at  fault,  authorizing 
a  sale  without  any  process  against  the  wrongdoer.  The  case 
was  brought  in  a  State  Court  of  Iowa  to  enforce  this  lien  in 
rem.  But  it  was  held  to  be  unenforceable  in  the  common  law 
court  as  being  purely  an  admiralty  proceeding.  However,  it 
was  admitted  that  if  an  action  in  personam  was  given  by  the 
State  law  to  the  same  effect  as  the  Iowa  statute,  it  could  be 
enforced  in  the  State  Court  (page  571).  Probably  the  fol- 
lowing statement  made  by  Mr.  Justice  Miller  in  the  Hine 
case  was  the  one  relied  upon  by  Mr.  Justice  McReynolds: 
"It  could  not  have  been  the  intention  of  Congress  by  the 
exception  in  that  section  (ninth  of  Judiciary  Act)  to  give  the 
suitor  all  such  remedies  as  might  afterwards  be  enacted  by 
State  Statutes." 

The  Belfast  Case33  is  given  as  a  second  authority.  Here 
an  Alabama  Statute  gave  a  lien  to  be  enforced  by  an  action 
in  rem  "  praying  process  in  admiralty  "  for  the  enforcement 
of  contracts  of  affreightment  in  the  State  Courts.  And 
again  the  Court  held  such  a  process  to  be  exclusively  within 
the  jurisdiction  of  the  Federal  Courts,  saying  that,  "State 
legislatures  have  no  authority  to  create  a  maritime  lien,  nor 
can  they  confer  any  jurisdiction  upon  a  state  court  to  enforce 
such  a  lien  by  a  suit  or  proceeding  in  rem  as  practiced  in  the 
admiralty  courts.  Observe  the  language  of  the  saving  clause 
under  consideration.  It  is  to  suitors,  not  to  the  State  Courts, 
nor  to  the  Circuit  Courts  of  the  United  States." 

The  case  of  the  American  S.  B.  Co.  vs.  Chase  is  again  cited, 
probably  for  the  dictum  quoted  above,  while  the  real  impor- 
tance of  the  case  is  overlooked.34 

The  fourth  case  in  support  of  the  contention  that  no  such 
remedy  exists  at  common  law  as  is  given  by  the  Workman's 
Compensation  Act,  is  that  of  the  Glide,35  where  an  action  was 
brought  in  a  Massachusetts  State  Court  to  enforce  a  lien  for 
labor  and  materials  furnished  a  tugboat  in  her  home  port. 

33  7  Wall.,  624. 
84  See  page  31. 
<*  167  U.  S,  606. 


CONSTITUTIONALITY  OF  STATE  LEGISLATION  27 

Here,  also,  the  Court  denied  the  power  of  the  State  Court  to 
enforce  the  lien,  and  a  very  complete  quotation  is  made  by 
the  court  from  the  earlier  case  of  the  Yankee  Blade.36 

The  maritime  "privilege"  or  Tien  is  adopted  from  the  civil  law 
and  imports  a  tacit  hypothecation  of  the  subject  of  it.  It  is  a  "jus 
in  re"  without  actual  possession  or  any  right  of  possession.  It 
accompanies  the  property  into  the  hands  of  a  bona  fide  purchaser. 
It  can  be  executed  and  divested  only  by  a  proceeding  in  rem.  This 
sort  of  proceeding  against  personal  property  is  unknown  to  common 
law,  and  is  peculiar  to  the  process  of  courts  of  admiralty.  The 
foreign  and  other  attachments  of  property  in  the  State  Courts, 
though  by  analogy  loosely  termed  proceedings  in  rem,  are  evidently 
not  within  the  category. 

The  final  argument  of  the  majority  opinion  was  that  the 
remedy  of  the  New  York  Workman's  Compensation  Act  was 
not  consistent  with  the  policy  of  Congress  to  encourage  in- 
vestments in  ships  as  manifested  in  the  Acts  of  1851  and 
iSSzj..37  However,  as  Congress  acted,  immediately  after  this 
decision,  on  the  matter  and  sought  to  permit  the  State  Courts 
to  enforce  the  State  Workman's  Compensation  Laws  in  mari- 
time cases  by  an  explicit  grant  to  that  effect,  it  would  seem 
that  Mr.  Justice  McReynolds  and  the  majority  of  the  court 
had  misconceived  the  policy  of  Congress. 

At  this  same  term  the  Supreme  Court  decided  the  case  of 
Walker  vs.  Clyde  Steamship  Company,38  an  almost  similar 
case  arising  under  the  New  York  law.  The  opinion,  after  a 
statement  of  facts,  merely  refers  to  the  Jensen  Case  as  the 
guiding  principle  and  reverses  the  action  of  the  State  Court. 

Discussion  of  the  Opinion. — In  view  of  the  fact  that  four 
Justices  of  the  Supreme  Court  dissented  from  the  Jensen 
opinion,  and  that  Congress  immediately  attempted,  by  posi- 
tive legislation,  to  overcome  the  effect  of  the  decision,  it  will 
not  prove  amiss  to  enquire  further  into  the  salient  doctrines 
enunciated  therein,  with  the  object  of  revealing  some  of  the 
doubts  held  as  to  their  correctness. 

36  18  Howard,  82,  89. 

37  Acts  of  1851   (9  Stat.  L.,  635,  chap.  43),  and  1884  (Rev.  Stat, 
4283-4285;  Comp.  Stat,   1916,  §§  8021-8023;  §  1 8,  Act  of  June  26, 
1884,  23  Stat.  L.,  57  chap.,  121;  Comp.  Stat.,  1916,  §  8028). 

58  244  U.  S.,  255. 


28  RECENT  PROBLEMS  IN  ADMIRALTY  JURISDICTION 

The  first  argument  in  the  case  was  that  the  New  York 
Compensation  Act  changed  and  modified  the  general  mari- 
time law  to  such  an  extent  that  it  fell  within  a  class  of  state 
legislation  which  could  not  be  enforced.  But  enforced  by 
what  court?  At  the  very  outset  it  would  seem  that  the 
majority  of  the  Supreme  Court  was  laboring  under  the  im- 
pression that  the  Jensen  Case  was  one  in  which  a  right  of 
action  arising  under  a  state  law  was  sought  to  be  enforced  in 
a  Federal  Admiralty  Court,  This  is  not  so;  the  original 
action  was  brought  in  a  State  Court  under  the  concurrent 
jurisdiction  to  recover  under  a  statute  of  that  State.  The 
very  use  of  the  term  general  maritime  law  apparently  shows 
this  misconception  of  the  Supreme  Court,  and  a  lack  of  dis- 
tinction between  cases  brought  in  State  Courts  and  those 
brought  in  Admiralty.  It  is  the  Federal  Admiralty  Courts 
that,  in  the  absence  of  Congressional  Statutes  on  the  point  at 
issue,  apply  the  general  maritime  law.  Certainly  the  general 
maritime  law  is  not  a  part  of  the  common  law  in  the  sense 
that  it  has  been  incorporated  as  a  whole  therein.  The  two 
systems  are  distinct.  As  long  as  there  is  no  conflict  between 
the  rules  applied  in  the  common  law  and  the  rules  of  gen- 
eral maritime  law,  the  common  law  courts  will,  it  is  seen, 
often  apply  a  principle  of  maritime  law  to  a  case  in  point, 
especially  where  there  is  no  rule  of  common  law  applicable.39 

39  Effect  of  general  average  Bond,  Conrad  vs.  De  Montcourt,  138, 
Mo.  311. 

Rights  of  Contribution  and  General  Average,  Stilworthy  vs.  Mc- 
Kelvy,  30  Mo.  149;  Albany  Ins.  Co.  vs.  Whitney,  70  Pa.  St.,  248; 
Nelson  vs.  Belmont,  21  N.  Y.,  36;  Minick  vs.  Holmes,  25  Pa.  St., 
366. 

Rights  under  Contracts  of  Affreightment,  Gun  Co.  vs.  Lehigh  Val- 
ley T.  Co.,  123  Wis.,  143. 

Liability  of  Owners  for  assault  by  Master  or  seaman,  Gabrielson 
vs.  Waydell,  135  N.  Y,  i. 

Duties  of  Mate,  Copeland  vs.  Insurance  Co.,  2  Mete.  (Mass.),  432. 

Abandonment  and  Constructive  Total  Loss,  Bryant  vs.  Ins.  Co., 
6  Pick,  131 ;  Dunning  vs.  Ins.  Co.,  57  Me.,  108. 

Forfeiture  of  Wages,  Freeman  vs.  Walker,  6  Me.,  68;  Noble  vs. 
Steele,  42  Me.,  518. 

Wreck  as  terminating  wages,  McGilvery  vs.  Stackpole,  35  Me.,  283. 

Capture  as  terminating  wages,  Smith  vs.  Gitvers,  4  Day  (Conn.), 
105. 


CONSTITUTIONALITY   OF   STATE  LEGISLATION  29 

But  when  the  rules  of  common  law  and  the  rules  of  maritime 
law  conflict,  the  State  Courts  have  held  that  the  common  law 
rule  must  prevail.  In  Sawyer  vs.  Eastern  Steamboat  Co., 
46  Me.,  400,  an  action  for  damages  for  collision  was  brought. 
The  court  said : 

It  is  not  denied  that  the  courts  of  common  law  have  a  concurrent 
jurisdiction  with  courts  of  Admiralty  in  cases  of  this  kind.  If  how- 
ever a  party  elects  the  common  law  remedy,  he  thereby  voluntarily 
submits  to  the  legal  principles  and  modes  of  proceeding  which  pre- 
vail in  the  courts  affording  that  remedy.  By  such  election  both  par- 
ties become  entitled  to  the  common  law  administered  as  it  exists 
and  also  to  have  a  trial  by  jury.40 

Masters  liability  for  negligence  of  seamen,  Kennedy  vs.  Rydall,  67 
N.  Y.,  379- 

Suits  in  State  Courts  by  Seamen  for  expenses  of  medical  attention, 
Moseley  vs.  Scott,  2  Oh.,  Dec.  449;  Scarff  vs.  Metcalf,  107  N.  Y., 
21 1 ;  Sanders  vs.  Stimpson  Mill  Co.,  32  Wash.,  627;  Holt  vs.  Cum- 
mings,  102  Pa.,  212. 

40  The  court  then  quotes  from  a  charge  which  had  been  requested 
but  refused,  as  follows:  "If  they  should  find  that  the  persons  in 
charge  of  the  steamer  saw  the  schooner  in  season  to  notify  her  of 
their  approach,  by  ringing  the  bells  or  blowing  the  whistle,  before 
the  schooner  saw  the  steamer  and  in  consequence  of  neglecting  to  do 
so  the  collision  occurred,  then  they  would  be  in  fault  and  the  de- 
fendants should  pay  damages."  Continuing  the  court  said :  "  It  is 
now  contended  that  this  construction,  as  a  matter  of  law  should  have 
been  given.  Our  inquiry  then  is,  is  this  requested  instruction  in  ac- 
cordance with  the  principles  of  the  common  law?  It  by  no  means 
follows  that  such  is  the  common  law,  even  if  it  should  appear  that 
Courts  of  Admiralty  and  Maritime  jurisdiction  have  decided  that 
proper  care  and  prudence  require  that  under  similar  or  the  same 
circumstances  stated  in  the  request  it  was  the  duty  of  the  steamer 
to  blow  her  whistl'e  or  ring  her  bell.  The  law  by  which  such  courts 
are  controlled  may  have  its  precise  rules  by  which  to  determine  with 
accuracy  a  question  of  duty  or  fault,  and  by  these  rules  the  judgment 
of  such  courts  may  be  bound.  These  rules  may  be  such  as  to  com- 
mend themselves  to  judicial'  wisdom  and  yet  be  no  part  of  the  com- 
mon law.  .  .  .  These  technical  rules  or  usages  of  the  sea  as  estab- 
lished or  recognized  by  the  maritime  law  are  important  facts  to  be 
presented  to  the  jury  .  .  .  but  they  are  not  rul'es  of  the  common  law." 
Then  speaking  of  the  duties  imposed  upon  users  of  the  highways, 
"  These  1'aws,  if  they  exist  by  statute  or  at  common  law,  may  be  given 
to  the  jury  as  such,  but  if  they  are  the  laws  of  another  jurisdiction, 
whether  foreign,  maritime,  or  any  such  as  do  not  prevail  as  law 
without  proof  (as  a  fact)  .  .  .  then  the  presiding  Judge  cannot  prop- 
erly be  called  upon  to  state  them  as  rules  absolutely  existing  for  the 
guidance  of  the  jury." 


3O  RECENT   PROBLEMS   IN  ADMIRALTY   JURISDICTION 

A  conflict  of  the  two  systems  of  rules  arose  in  another 
case41  involving  the  authority  of  a  master  to  pledge  the 
credit  of  the  shipowner.  By  the  general  maritime  rule  the 
master  cannot  bind  the  owner  in  the  home  port  unless  the 
owner  is  absent  and  unable  to  be  communicated  with.  But 
the  State  Court  held  that  "whatever  the  doctrine  of  the 
maritime  law,  by  the  analogies  of  the  common  law  the  duties 
and  relations  of  the  master  furnish  presumptive  evidence  of 
his  authority  to  purchase  supplies." 

Then  there  are  a  large  number  of  cases  at  common  law  in 
which  the  State  Courts  refused  to  apply  the  admiralty  rule  of 
an  equal  division  of  damages  for  collision  in  which  both 
vessels  are  at  fault  and  other  similar  rules  of  liability  in 
maritime  law,  holding  that  the  common  law  rules  of  con- 
tributory negligence  were  the  rules  that  governed.42 

Therefore  the  law  which  the  State  Courts  are  bound  to 
apply  in  cases  brought  within  their  concurrent  admiralty  and 
maritime  jurisdiction  is  not  the  general  maritime  law,  and 
indeed  under  the  saving  clause  itself,  this  jurisdiction  is 
limited  to  cases  in  which  the  common  law  is  competent  to 
give  a  common  law  remedy. 

41  Crawford  vs.  Roberts,  50  Cal.,  235 ;  cf .  also  Reynolds  vs.  Niel- 
son,  116  Wis.,  483 ;  Andrews  vs.  Betts,  8  Hun.,  322;  Kalleck  vs.  Deer- 
ing,  161  Mass.,  469. 

«  N.  Y.  Harbor  Towboat  Co.  vs.  N.  Y.  S.  E.  &  W.  R.  Co.,  148  N. 
Y.,  574;  Broadwell  vs.  Swigert,  7  B.  Mon.  (Ky.),  39,  saying  that 
however  just  the  maritime  rule  may  be,  it  is  for  the  legislature  and 
not  the  courts  to  adopt  it,  "The  common  law  rule  is  the  rule  by 
which  this  court  and  the  courts  of  Kentucky  are  to  be  governed  " ; 
Owners  of  Steamboat,  Farmer  vs.  McCraw,  26  Ala.,  189;  Duggins  vs. 
Watson,  15  Ark.,  118;  Brown  vs.  Gil'more,  92  Pa.  St.,  40  (dictum)  ; 
Kelley  vs.  Cunningham,  i  Cal.,  365 ;  Lord  vs.  Hazeltine,  67  Me.,  399 
— "The  rules  of  Admiralty  on  the  subject  of  collision  do  not  concur 
in  all  respects  with  those  of  the  common  law.  This  being  an  action 
at  common  law,  tried  by  a  jury,  the  presiding  judge  properly  in- 
structed them,  in  substance,  that  if  the  collision  were  the  fault  of  the 
Plaintiff,  or  of  both  parties,  or  of  neither,  the  plaintiff  could  not  re- 
cover " ;  Galena  Packet  Co.  vs.  Vandergrift,  34  Mo.,  55 ;  Meyers  vs. 
Perry,  I  La.  Ann.,  372;  Carlisle  vs.  Holton,  3  La.  Ann.,  48;  Arctic 
Fire  Ins.  Co.  vs.  Austin,  69  N.  Y.,  470;  Baker  vs.  Lewis,  33  Pa.  St., 
301;  Union  S.S.  Co.  vs.  Nottingham,  17  Gratt,  115;  "The  Admiralty 
rule  .  .  .  does  not  prevail  in  the  courts  of  common  law  and  is  incon- 
sistent with  common  law  principles"  (dictum). 


CONSTITUTIONALITY   OF   STATE  LEGISLATION  31 

Just  how  the  New  York  Common  Law  courts,  by  enforcing 
the  New  York  Workman's  Compensation  Act,  thereby 
changed  and  altered  the  general  maritime  law  it  is  difficult  to 
see.  The  New  York  law  attempts  to  force  nothing  upon  the 
Federal  District  Courts. 

Furthermore,  the  Jensen  Case  was  never  one  where  the 
question  arose  as  to  whether  an  Admiralty  Court  could  exer- 
cise its  judgment  in  enforcing  a  state  statute,  and  thus 
change  the  general  maritime  law  (which  it  applies  in  the 
absence  of  federal  statute  law)  by  adopting  the  state  law. 

And  yet,  in  the  deciding  opinion,  it  is  classed  with  certain 
cases  nearly  all  of  which  were  cases  brought  originally  in  an 
admiralty  court  attempting  to  have  this  federal  side  of  the 
concurrent  jurisdiction  recognize  and  enforce  state  laws.  It 
is  conceded  that  had  the  Jensen  Case  been  brought  in  the  U.  S. 
District  Court,  sitting  as  an  admiralty  court,  then  a  question 
might  have  arisen  on  the  grounds  set  forth  in  the  opinion  of 
Mr.  Justice  McReynolds,  as  to  the  enforcement  of  the  New 
York  Workmen's  Compensation  law  therein. 

Three  of  the  cases  cited  in  the  opinion,  as  falling  within 
one  of  these  two  classes,  namely,  of  state  laws  upheld,  and 
state  laws  not  enforced,  were  indeed  cases  brought  in  a  com- 
mon law  court.  An  examination  of  these  however  will  re- 
veal no  grounds  whatever  for  a  refusal  to  permit  a  State 
Court  to  apply  its  Compensation  Act  to  maritime  employees. 

The  first  of  these  is  Cooley  vs.  Port  Wardens.43  Here  a 
State  Court  of  Pennsylvania  was  permitted  to  enforce  a  state 
law  regulating  pilotage  fees.  A  second,  is  the  case  of  the 
American  S.  B.  Co.  vs.  Chase,44  which  for  some  remarkable 
reason  was  cited  as  an  example  of  a  state  law  which  was  not 
allowed  to  be  enforced,  and  in  support  of  the  contention 
"that  state  statutes  may  not  contravene  an  applicable  act  of 
Congress  or  affect  the  general  maritime  law  beyond  certain 
limits." 45  Indeed  any  dictum  to  be  found  in  this  decision  to 

43  12  Howard,  299. 

44  16  Wallace,  522. 

45  This  was  probably  done  in  reference  to  the  dictum  in  that  case 
which  has  been  quoted  on  page  23. 


32  RECENT  PROBLEMS  IN  ADMIRALTY  JURISDICTION 

this  effect  is  entirely  beside  the  point  at  issue  for  this  was  a 
case  brought  in  a  common  law  court  of  the  State  of  Rhode 
Island  in  personam,  to  recover  for  death  arising  out  of  a 
maritime  tort.  The  deceased  while  sailing  upon  navigable 
waters  of  the  United  States  had  been  run  over  and  killed  by 
a  steamboat,  and  a  Rhode  Island  Statute  gave  a  right  of 
recovery  for  this  death.  The  Supreme  Court,  after  express- 
ing a  doubt  as  to  whether  such  a  right  of  action  survived  in 
Admiralty,  decided  that  a  recovery  could  be  had  in  the  State 
Court  under  the  provisions  of  the  state  law,  because  the  case 
was  not  a  question  of  the  law  to  be  applied  in  admiralty,  but 
one  of  a  case  brought  in  a  State  Court  under  the  state  statute. 

And  further,  this  decision  would  seem  to  hold  that  a  State 
Court  will  have  jurisdiction  in  every  case  in  personam,  when 
in  the  same  circumstances  an  Admiralty  Court  would  have 
jurisdiction. 

This  is  upheld  in  the  case  of  Leon  vs.  Galceran46  of  which 
no  mention  whatever  is  made  in  Justice  McReynolds's  opinion. 
Justice  Clifford  there  held  that  "  the  common  law  is  as  com- 
petent as  the  Admiralty  to  give  a  remedy  in  all  cases  where 
the  suit  is  in  personam  against  the  owner  of  the  property." 

As  the  case  of  the  Steamboat  Co.  vs.  Chase  seems  to  be  a 
case  almost  identically  in  point  with  the  Jensen  Case,  it  is  very 
difficult  to  understand  how  the  majority  opinion  could  have 
overlooked  its  real  import  while  repeatedly  citing  it  in  sup- 
port of  the  unconstitutionality  of  the  New  York  Compensa- 
tion Act,  when  extended  to  maritime  causes  brought  in  a 
state  common  law  court. 

The  third  case  of  an  attempt  to  enforce  a  state  statute  in 
a  State  Court,  which  is  cited  in  the  Jensen  decision,  was  that 
of  the  Moses  Taylor.47  Here  indeed  is  exemplified  the  only 
type  of  state  legislation  which  the  state  common  law  courts 
have  been  estopped  from  enforcing,  that  is,  the  state  laws 
which  attempt  to  create  an  action  in  rem  enforceable  in  a 
common  law  court  against  the  vessel.  This,  as  before  stated, 

4«n  Wall.,  191. 
47  4  Wall.,  411. 


CONSTITUTIONALITY   OF   STATE  LEGISLATION  33 

is  on  the  ground  that  the  process  in  rem  against  the  ship  is 
distinctly  an  admiralty  process.48  But  a  lien  not  upon  the 
rem  is  enforceable  in  State  Courts.49 

The  Moses  Taylor  decision  can  have  very  little  weight  on 
the  point  at  issue  as  the  New  York  law  in  the  Jensen  Case 
did  not  create  a  process  in  rem  against  the  vessel  at  all. 

The  analogy  between  this  type  of  legislation  and  some  of 
the  state  legislation  affecting  interstate  commerce  which  is 
set  forth  by  the  Court  in  its  opinion,  and  which  is  advanced 
as  the  second  chief  reason  for  its  decision,  has  been  strongly 
attacked  by  Mr.  Justice  Pitney  in  his  dissenting  opinion.  He 
says : 50  "  although  the  Constitution  contains  an  express  grant 
to  Congress  of  the  power  to  regulate  interstate  and  foreign 
commerce,  nevertheless,  until  Congress  had  acted,  the  re- 
sponsibility of  interstate  carriers  to  their  employees  for  in- 
juries arising  in  interstate  commerce  was  controlled  by  the 
laws  of  the  States."  As  authority  for  this  statement  he  cites 
the  Second  Employers'  Liability  Case.51 

It  will  be  remembered  that  the  argument  of  the  majority 
opinion  was  based  on  a  Quotation  from  the  case  of  Bowman 
vs.  Chicago  &  N.  W.  R.  Co.52  Even  granting  the  possible 
analogy  between  the  rules  of  concurrent  jurisdiction  in  inter- 
state commerce  and  in  maritime  matters,  it  would  be  un- 
doubtedly unfair  to  accept  this  statement  as  a  controlling  one 
without  a  further  investigation  into  that  case.  There  the 
Supreme  Court  held  invalid  as  a  regulation  of  interstate  com- 

48  It  may  be  interesting  to  note  that  the  Moses  Taylor  is  the  only 
maritime  lien  case  that  has  come  to  the  Supreme  Court  in  which  a 
process  in  rem  given  by  a  State  Statute  is  denied  enforcement  in  a 
common  law  court.    All  the  other  cases  were  attempts  to  have  state 
statutes  creating  liens  and  processes  in  rem  recognized  and  enforced 
in  Federal  Admiralty  Courts. 

49  "  An  action  in  personam  with  concurrent  remedy  of  attachment 
to  secure  payment  of  a  personal  judgment  is  within  the  jurisdiction 
of  the  State  court  even  though  such  attachment,  if  auxiliary  to  the 
remedy  in  personam,  runs  specifically  against  the  vessel  under  a  state 
statute  providing  for  a  lien  "  (Rounds  vs.  Cloverport  Foundry,  237 
U.  S.,  303). 

50  244  U.  S.,  244. 
51 223  U.  S.,  i. 
52  See  page  24. 


34  RECENT   PROBLEMS   IN  ADMIRALTY   JURISDICTION 

merce  a  state  law  forbidding  common  carriers  to  transport 
intoxicating  liquors  from  a  foreign  state  into  the  enacting 
state,  without  first  obtaining  certain  certificates  of  license 
from  state  officials.  The  real  question  at  issue,  briefly  put, 
was  whether,  when  Congress  fails  to  provide  a  regulation  by 
law,  commerce  shall  be  free  from  positive  regulation,  or 
whether  the  State  can  legislate.  The  state  law  was  held 
improper  as, — "It  is  not  an  exercise  of  the  jurisdiction  of 
the  State  over  persons  and  property  within  its  limits.  On 
the  contrary,  it  is  an  attempt  to  exert  that  jurisdiction  over 
persons  and  property  within  the  limits  of  other  states." 

This  part  of  the  opinion  in  the  Bowman  Case  therefore 
excepts  just  such  state  laws  as  the  New  York  Workman's 
Compensation  Act  from  the  very  rule  expressed  elsewhere 
in  the  opinion  and  relied  upon  by  Mr.  Justice  McReynolds 
in  the  Jensen  decision.53 

A  striking  case,  upon  the  very  point  at  issue  and  one  which 
validates  such  a  law  as  the  Compensation  Act,  is  Sherlock  vs. 
Ailing.54  This  case  is  not  mentioned  in  the  majority  opinion 
of  the  Jensen  Case.  Here  was  a  case  in  which  an  action  was 
brought  in  a  State  Court  of  Indiana  by  personal  representa- 
tives to  recover,  under  an  Indiana  Statute,  damages  for  death 
resulting  from  a  collision  of  steamboats  on  the  Ohio  River. 
And  it  was  held  by  the  Supreme  Court  that  the  state  statute 
could  be  enforced  in  the  State  Court  as  not  being  a  prohibited 
state  regulation  of  commerce.  This  was  on  the  ground  that 
the  "statute  imposes  no  iax,  prescribes  no  duty,  and  in  no 
respect  interferes  with  any  regulations  for  the  navigation  and 
use  of  vessels.  It  only  declares  a  general  principle  respect- 
ing the  liability  of  all  persons  within  the  jurisdiction  of  the 
State.  .  .  .  General  legislation  of  this  kind,  prescribing  the 
liabilities  or  duties  of  citizens  of  a  State,  without  distinction 
as  to  pursuit  or  calling  is  not  open  to  any  valid  objection 
because  it  may  affect  persons  engaged  in  foreign  or  inter- 
State  commerce.  .  .  .  Legislation  in  a  great  variety  of  ways 

53  See  page  27. 
"93U.  S.,  99- 


CONSTITUTIONALITY  OF  STATE  LEGISLATION  35 

may  affect  commerce  and  persons  engaged  in  it  without  con- 
stituting a  regulation  of  it,  within  the  meaning  of  the  Con- 
stitution." 

If  it  was  intended  that  the  decision  in  the  Jensen  Case 
should  overrule  this  Indiana  case  of  1876  as  it  apparently 
does,  it  is  hard  to  understand  why  no  mention  was  made  of 
that  important  previous  decision.  Certainly  the  analogy  to 
interstate  commerce  as  an  argument  was  an  extremely  un- 
fortunate and  ill  conceived  one.  For  in  making  any  com- 
parison between  these  two  jurisdictions  of  the  Federal  Gov- 
ernment it  should  be  remembered  that  Article  III,  section  2, 
clause  i,  of  the  Constitution  is  merely  a  grant  of  judicial 
power  in  admiralty  and  maritime  cases,  whereas  the  com- 
merce clause,  Article  I,  section  8,  clause  3,  is  an  express  grant 
to  Congress  to  regulate  interstate  commerce.  It  is  difficult 
to  see  how  the  implied  power  of  federal  legislation  arising 
under  the  Admiralty  judicial  grant  in  the  former  can  have  a 
greater  limiting  effect  on  the  power  of  state  legislation  than 
the  latter  express  grant  of  legislative  power. 

A  consideration  of  the  third  argument  advanced  against 
the  validity  of  the  New  York  Compensation  law  by  the 
Court,  that  is,  the  resulting  destruction  of  uniformity,  has 
already  revealed  a  strikingly  erroneous  assumption.55  The 
opening  sentence  of  the  argument  is  as  follows:  "If  New 
York  can  subject  foreign  ships  coming  into  her  ports  to  such 
obligations  as  those  imposed  by  her  compensation  Statute, 
other  states  may  do  likewise."  The  ship,  El  Oriente,  in  the 
Jensen  Case  was  in  no  way  itself  subjected  to  any  liability  by 
the  New  York  law,  and  as  an  instrument  of  commerce  the 
ship  was  not  hindered  or  delayed  in  the  continuation  of  its 
maritime  operations,  as  was  the  ship  Roanoke  in  the  case56 
which  is  given  in  the  argument  as  an  example  in  point. 

There,  the  ship  itself  was  held  in  port  while  it  was  sought 
in  an  admiralty  court  to  enforce  a  lien  in  rem  created  by  a 
Washington  State  Statute,  for  work  done  and  materials  fur- 

55  See  page  25. 

86  The  Roanoke,  189  U.  S.,  185. 


36  RECENT   PROBLEMS   IN  ADMIRALTY   JURISDICTION 

nished.  The  Court  stated  that  the  general  maritime  law  itself 
gave  a  lien  against  a  foreign  ship  for  necessaries  furnished, 
without  the  necessity  of  the  state  statute,  and  that  the  statute, 
by  declaring  every  contractor  and  subcontractor  an  agent  of 
the  owner,  was  an  attempt  on  the  part  of  the  state  to  change 
the  general  maritime  law  which  the  federal  court  had  to  apply 
and  thus  was  unenforceable  in  the  admiralty  court.  The 
effect  of  the  state  law  would  have  been  to  hold  the  ship 
unjustly  while  subcontractors  disputed  claims  against  the  con- 
tractor. The  opinion  of  Mr.  Justice  Story  in  the  Chusan57 
is  cited,  in  which  he  refused  to  apply  to  a  Massachusetts 
vessel  a  law  of  the  State  of  New  York  requiring  a  lien  for 
supplies  to  be  enforced  before  the  vessel  left  the  state.  In 
cases  of  supplies  furnished  to  foreign  ships,  he  said,  "the 
jurisdiction  of  the  courts  of  the  United  States  is  governed 
by  the  Constitution  and  laws  of  the  United  States,  and  is  in 
no  sense  governed,  controlled,  or  limited  by  the  local  legis- 
lation." 

Certainly  there  is  no  such  attempt  in  the  Jensen  Case  to 
make  the  New  York  law  govern  the  jurisdiction  of  a  United 
States  Court,  nor  in  any  way  to  hold  in  port  a  vessel  under 
libel  proceedings. 

If  it  did,  then  it  is  conceded  that  the  necessity  of  uni- 
formity in  such  legislation  would  preclude  the  enforcement 
of  the  Compensation  law. 

But  these  cases  do  not  say  that  the  jurisdiction  of  the  State 
Courts  is  governed  by  federal  or  general  maritime  law  or 
that  the  State  has  no  jurisdiction  because  the  vessel  was  a 
foreign  vessel. 

The  fourth  point  of  the  majority  opinion  in  the  principal 
case  was  that  the  remedy  which  the  Compensation  Statute 
attempted  to  give  was  of  a  character  wholly  unknown  to  the 
common  law,  and  hence  not  one  coming  within  the  meaning 
of  the  common  law.  No  argument  whatever  is  offered  in 
explanation  of  this  bare  statement  and  merely  the  three  cases 
of  the  Hine,  the  Belfast,  and  the  Glide58  are  cited.  As  the 


"2  Story,  455  (1843). 
58  Cf.  above,  page  26. 


CONSTITUTIONALITY   OF   STATE  LEGISLATION  37 

remedy  attempted  to  be  given  by  the  state  law  in  each  of 
these  was  an  action  in  rem  in  the  state  court  against  the  ship 
itself,  it  is  difficult  to  see  how  any  rule,  applicable  to  the 
remedy  in  the  Jensen  Case,  is  established. 

Peculiarly,  the  case  of  the  American  S.  B.  Co.  vs.  Chase59 
is  again  cited  in  support  of  this  fourth  contention,  when  in 
that  very  case  it  was  argued  that  the  right  of  recovery  for 
death  under  the  Rhode  Island  law  was  not  a  common  law 
right  such  as  was  meant  by  the  same  clause,  since  the  right 
had  been  created  since  the  Judiciary  Act.  This  argument 
was  overruled  by  the  Court  and  recovery  was  permitted  in 
the  State  Court,  Mr.  Justice  Clifford  stating:  "Actions  to 
recover  damages  for  personal  injuries  prosecuted  in  the  name 
of  the  injured  party  were  well  known,  even  in  the  early  his- 
tory of  the  common  law.  Such  actions,  it  must  be  admitted, 
did  not  ordinarily  survive,  but  nearly  all  the  States  have 
passed  laws  to  prevent  such  a  failure  of  justice,  and  the 
validity  of  such  laws  has  never  been  much  questioned." 

It  is  submitted  that  there  is  no  valid  reason  why  a  state 
statute  providing  a  remedy  for  death  resulting  from  tort 
should  be  enforced  and  not  one  providing  for  death  by  acci- 
dent. 

What  then  is  really  meant  by  the  saving  clause  when  it 
speaks  of  a  common  law  remedy?  In  the  first  place,  if  as 
has  often  been  said60  there  is  no  common  law  of  the  United 
States,  certainly  it  must  be  admitted  that  each  individual 
State  possesses  a  common  law.  Therefore  a  "common  law 
remedy  "  must  mean  a  state  common  law  remedy.  The  next 
step  is, — as  held  in  the  American  S.  B.  Co.  vs.  Chase  Case, — 
that  the  state  common  law  remedies  in  this  concurrent  juris- 
diction are  not  limited  to  those  which  existed  prior  to  the 
Judiciary  Act.61 

As  a  third  point,  it  must  be  observed  that  the  saving  clause 
does  not  limit  the  state  concurrent  jurisdiction  to  common 

5»  16  Wall.,  522. 

60  Wheaton  vs.  Peters,  8  Pet.,  591 ;  Western  U.  Tel.  Co.  vs.  Call 
Pub.  Co.,  181  U.  S.,  92. 

61  Knapp  &  Co.  vs.  McCaffrey,  177  U.  S.,  638. 


38  RECENT   PROBLEMS   IN  ADMIRALTY   JURISDICTION 

law  rights  of  action  but  only  to  common  law  remedies.  Is  it 
to  be  assumed  that  the  framers  of  the  Judiciary  Act  intended 
that  the  law  applied  in  the  State  Courts  should  remain  for- 
ever a  stationary  body  of  law  becoming  more  and  more  in- 
adequate to  the  enormous  expansion  of  the  maritime  activity 
of  the  country?  And,  as  Mr.  Justice  Holmes  asks  in  his 
dissent,  "if  the  grant  of  jurisdiction  to  the  courts  of  the 
United  States  imports  a  power  in  Congress  to  legislate,"  why 
does  not  the  saving  clause  import  a  similar,  but  subordinate 
power,  in  the  State  to  legislate  ?  " 

Rights  of  property  which  have  been  created  by  the  common  law 
cannot  be  taken  away  without  due  process,  but  the  law  itsel'f,  as  a 
rule  of  conduct,  may  be  changed  at  the  will  ...  of  the  legislature,  un- 
less prevented  by  constitutional  limitations.  Indeed,  the  great  office 
of  statutes  is  to  remedy  defects  in  the  common  law  as  they  are  devel- 
oped, and  to  adapt  it  to  the  changes  of  time  and  circumstances.62 

If,  then,  the  statute  law  gives  a  new  right  of  action,  cer- 
tainly the  common  law  is  as  competent  as  the  Admiralty  to 
give  a  remedy  in  all  cases  where  the  suit  is  in  personam 
against  the  owner  of  the  property.63  And  it  has  been  held, 
in  an  opinion  by  Mr.  Justice  Holmes  in  19 13,64  that  Admi- 
ralty has  jurisdiction  of  a  suit  in  personam  by  an  employee  of 
a  stevedore  against  the  employer  to  recover  for  injuries  sus- 
tained through  the  negligence  of  the  latter  while  engaged  in 
loading  a  vessel  lying  at  the  dock  in  navigable  waters. 

Conversely,  the  extent  to  which  the  common  law  State 
Courts  have  been  permitted  to  go  in  entertaining  a  suit  in 
personam  with  an  auxiliary  attachment  of  a  vessel  in  the 
enforcement  of  a  common  law  remedy  is  well  illustrated  by 
the  case  of  Knapp  vs.  McCaffrey.65 

Here,  even  a  bill  in  equity  in  a  state  court  to  foreclose  a 
common  law  lien  upon  a  raft  for  towage  services  was  held 
to  be  a  proceeding  to  enforce  a  common  law  remedy  and 
hence  within  the  saving  clause,  as  a  remedy  which  the  com- 
mon law  is  competent  to  give.  This  shows  clearly  that  the 

62  Munti  vs.  Illinois,  94  U.  S.,  113,  134. 

63  Leon  vs.  Galceran,  n  Wall.,  185. 

64  Atlantic  Transport  Co.  vs.  Imbrovek,  234  U.  S.,  53. 

65  177  U.  S.,  638. 


CONSTITUTIONALITY   OF   STATE  LEGISLATION  (    39 


saving  clause  does  not  limit  the  jurisdiction  of  the  State 
Courts  to  common  law  actions,  for  certainly  a  suit  in  equity 
is  not  a  common  law  action.  The  decision  of  the  Courts  of 
Illinois,  the  State  in  which  the  case  was  tried,  held  that  liens 
for  the  enforcement  of  which  there  was  no  special  statutory 
provision  were  enforceable  in  equity.  Thus  a  common  law 
remedy  was  created,  enforceable  under  the  saving  clause 
although  the  action  was  one  in  equity. 

It  is,  therefore,  the  opinion  of  the  writer  that  the  majority 
of  the  Supreme  Court  in  the  Jensen  Case  was  in  error  in 
each  one  of  the  five  principal  arguments  set  forth  in  its  de- 
cision and  which  have  been  enumerated  above. 

The  decision  in  the  Jensen  Case  was  handed  down  on  May 
21,  1917,  and  soon  thereafter  the  attention  of  the  65th  Con- 
gress, then  in  session,  was  directed  to  the  case  and  its  un- 
fortunate effect  on  State  Workmen's  Compensation  Acts. 
The  result  was  that  on  October  6  of  the  same  year,  the  Con- 
gress enacted  an  amendment66  to  sections  twenty- four  and 
two  hundred  and  fifty-six  of  the  Judicial  Code.  This 
amendment  changed  the  saving  clause67  so  as  to  read  as  fol- 
lows :  ".  .  .  saving  to  suitors  in  all  cases  the  right  of  a  com- 
mon law  remedy  where  the  common  law  is  competent  to  give 
it,  and  to  claimants  the  rights  and  remedies  under  the  work- 
men's compensation  law  of  any  state" 

Effect  of  the  Jensen  Decision  in  Matters  not  Involving 
State  Compensation  Acts. — Before  taking  up  a  discussion  of 
this  Amendment  to  the  saving  clause  and  its  failure  to  accom- 
plish its  purpose  by  reason  of  its  unconstitutionality,  the 
writer  desires  to  call  attention  first  to  a  subsequent  case 
decided  by  the  Supreme  Court,  which  in  no  way  involved  a 
state  compensation  law  but  which  was  decided  upon  one  of 
the  principles  enunciated  in  the  Jensen  Case. 

As  the  amendment  was  designed  only  to  validate  state 
legislation  in  the  nature  of  Compensation  Acts  the  consti- 

66  U.  S.  Stat  L.,  vol.  40,  Part  i,  chap.  97,  p.  395. 

67  See  page  12. 


4O  RECENT    PROBLEMS   IN   ADMIRALTY   JURISDICTION 

tutionality  of  it  was  not  brought  into  issue  in  this  latter  case. 
But  it  is  believed  that  the  unfortunate  and  faulty  reasoning  of 
the  former  case  is  reflected  therein  with  the  result  that  any 
attempt  to  determine  what  limit  can  be  set  in  the  future  upon 
the  federal  power  derivable  from  the  admiralty  clause  is  cast 
into  considerable  doubt. 

The  case  referred  to  is  that  of  Chelentis  vs.  Luckenbach 
S.  S.  Co.,68  decided  June  3,  1918.  Here  a  member  of  the 
crew  of  the  Luckenbach,  a  ship  owned  and  operated  by  a 
Delaware  corporation,  was  injured  upon  the  ship  while  at 
sea.  He  instituted  a  common  law  action  in  a  New  York 
State  Court  demanding  full  indemnity  for  damage  sustained. 
The  cause  was  removed  to  the  United  States  District  Court 
because  of  diverse  citizenship.  However  the  case  still  re- 
mained on  the  common  law  side.  The  question  presented 
depended  upon  the  determination  of  the  following  matters: 
If  the  seaman,  who  was  injured,  had  brought  his  case  in 
admiralty,  it  was  conceded  that  under  all  the  facts  he  could 
recover  only  wages  to  the  end  of  the  voyage  and  the  expenses 
for  maintenance  and  cure  for  a  reasonable  time  thereafter. 
But  he  chose  to  sue  in  common  law  under  the  concurrent 
jurisdiction  expecting  to  recover  the  full  indemnity  that  is 
allowed  by  the  common  law  to  employees  on  shore  under 
similar  circumstances  of  injury. 

The  question  then  raised  was,  shall  the  common  law  court 
apply  the  common  law  doctrines,  or  must  the  common  law 
court  apply  the  principles  of  general  maritime  law  which 
govern  the  federal  admiralty  courts,  simply  because  this  was 
a  maritime  injury  over  which  admiralty  could  have  juris- 
diction if  the  case  was  brought  therein. 

The  Supreme  Court,  again  through  Mr.  Justice  McRey- 
nolds,  with  a  dissent  by  Mr.  Justices  Pitney,  Brandeis  and 
Clark,  held  that  the  seamen  at  common  law  could  recover 
only  maintenance,  cure  and  wages;  in  other  words  that  in 
maritime  matters  of  this  sort  the  common  law  courts  must 
apply  general  maritime  law. 

<«247U.  S.,372. 


CONSTITUTIONALITY   OF   STATE  LEGISLATION  41 

The  argument,  of  course,  is  that  the  saving  clause  in  sav- 
ing to  suitors  a  common  law  remedy  says  nothing  about  sav- 
ing common  law  rights,  hence  the  only  rights  which  can  be 
enforced  in  the  common  law  courts,  under  the  concurrent 
jurisdiction  in  admiralty  and  maritime  matters,  are  the  rights 
recognized  by  the  law  of  the  sea,  or  general  maritime  law. 
Quoting  from  the  decision : 

Plainly,  we  think,  under  the  saving  clause  a  right  sanctioned  by 
the  maritime  law  may  be  enforced  through  any  appropriate  remedy 
recognized  at  common  law ;  but  we  find  nothing  therein  which  re- 
veal's an  intention  to  give  the  complaining  party  an  election  to  de- 
termine whether  the  defendant's  liability  shall  be  measured  by  com- 
mon law  standards  rather  than  those  of  the  maritime  law. 

These  words  of  the  Supreme  Court  in  1918  sound  start- 
lingly  similar  to  the  ancient  petition  of  grievances  presented 
by  the  Admiralty  complaining  of  the  encroachment  of  the 
common  law  courts  upon  the  original  jurisdiction  of  the 
admiralty;  and  it  would  seem  that  again  the  old  quarrels  of 
the  English  courts  have  been  brought  to  light  and  renewed. 

This  then  is  the  significance  of  the  Jensen  Case,  amend- 
ment or  no  amendment.  If  the  writer  is  correct  in  the  con- 
clusion drawn,  what  a  hopeless  confusion  will  result  through 
the  extension  of  this  doctrine !  For  example,  is  it  to  be 
understood  that  the  long  line  of  cases  are  overruled  in  which 
the  Supreme  Court  itself  has  applied  the  rules  and  principles 
of  common  law  in  cases  brought  by  writ  of  error  from  State 
Courts,  even  where  the  admiralty  rules  and  principles  and 
rights  were  different. 

In  the  case  of  Belden  vs.  Chase69  an  action  was  brought  at 
common  law  for  a  maritime  tort  arising  out  of  a  collision  on 
the  Hudson  River  over  which  the  United  States  had  Admi- 
ralty jurisdiction.  If  the  Court  had  applied  the  admiralty 
rule,  there  would  have  been  an  equal  division  of  damages 
between  the  two  vessels,  since  both  were  guilty  of  faults 
contributing  to  the  collision.  But  since  the  case  was  brought 
at  common  law  the  Supreme  Court  held  that  the  common 
~™I5oU.  s.,  674  (1893). 


42  RECENT  PROBLEMS  IN  ADMIRALTY  JURISDICTION 

law  rule,  that  where  both  ships  are  culpable  neither  can 
recover  damages,  must  be  applied. 

And  in  Atlee  vs.  Packet  Co.70  the  Court  says : 

But  the  plaintiff  has  elected  to  bring  his  suit  in  an  admiralty  court 
which  has  jurisdiction  of  the  case  notwithstanding  the  concurrent 
right  to  sue  at  law.  In  this  court  the  course  of  proceeding  is  in  many 
respects  different.  .  .  .  An  important  difference  as  regards  this  case 
is  the  rule  for  estimating  the  damages.  In  the  common  law  court 
the  defendant  must  pay  all  the  damages  or  none.  ...  By  the  rule  of 
the  admiralty  court  .  .  .  when  both  have  been  at  fault,  the  entire 
damages  resulting  from  the  collision  must  be  equally  divided  be- 
tween the  parties. 

Compare  this  statement  of  Mr.  Justice  Miller  in  1874  with 
that  quoted  above71  from  the  Luckenbach  Case.  It  seems 
impossible  to  reconcile  the  two.  Does  not  the  Court  in  the 
Atlee  Case  and  the  Belden  Case  recognize  the  intention  in 
the  saving  clause  to  give  the  complaining  party  an  election  to 
determine  whether  the  defendant's  liability  shall  be  measured 
by  common  law  standards  rather  than  those  of  the  maritime 
law? 

See  also  the  case  of  the  Quebec  Steamship  Company  vs. 
Merchant,72  in  which  the  common  law  rule  of  liability  was 
applied.  Then  also  the  Luckenbach  Case  is  directly  opposed 
to  the  principles  of  the  Sherlock  vs.  Ailing73  Case  and  the 
American  S.  Co.  vs.  Chase  Case,74  in  which  new  rights  of 
action,  not  remedies,  were  created  by  state  laws  and  were 
allowed  to  be  enforced  in  the  state  common  law  courts  under 
the  concurrent  jurisdiction.  Certainly  the  Luckenbach  Case, 
if  not  intending  to  overrule  these  cases,  casts  a  great  shadow 
of  doubt  over  the  present  status  of  the  law. 

Further  than  this,  the  Luckenbach  Case,  besides  being  in 
conflict  with  the  former  law,  raises  some  very  important 
questions  affecting  the  whole  system  of  American  admiralty 
and  maritime  jurisprudence. 

In  the  first  place,  since  the  maritime  jurisdiction  of  the 
United  States  in  cases  ex  delicto  is  determined  by  the  locality, 

70  21  Wall.,  389,  395. 

71  Cf.  above,  page  41. 

72  133  U.  S.,  375- 

73  Cf .  above,  page  34. 

74  Cf.  above,  pages  23,  26,  31,  37. 


CONSTITUTIONALITY  OF  STATE  LEGISLATION  43 

and  hence  can  extend  to  all  navigable  waters  of  the  United 
States,  and  even  to  vessels  engaged  in  wholly  intra-state  com- 
merce, and  pleasure  craft,  and  even  to  cases  not  arising  on  a 
vessel,75  the  following  very  serious  doubt  arises.  If  it  is 
held  that  the  constitutional  grant  to  the  United  States  of 
admiralty  jurisdiction  makes  the  rules  of  decision  of  the  gen- 
eral maritime  law  which  prevail  in  the  Courts  of  Admiralty 
binding  upon  State  Courts  exercising  concurrent  jurisdiction, 
will  not  this  result  in  a  deprivation  of  the  police  power  of 
the  States  over  navigable  waters  lying  wholly  within  their 
respective  boundaries  ? 76 

If  this  is  true,  and  certainly  few  doubts  can  be  entertained 
to  the  contrary,  an  amazing,  though  perhaps  unconscious, 
attempt  at  judicial  legislation  has  been  made  by  these  de- 
cisions. 

Another  view  of  the  possible  far-reaching  effect  of  the 
Jensen  and  Luckenbach  decisions  is  that  these  cases,  holding 
that  admiralty  rules  of  liability  must  be  followed  in  the  com- 
mon law  courts,  have  in  fact  invested  the  common  law  courts 
with  a  new  admiralty  jurisdiction.77  And  it  must  be  ad- 
mitted that  it  is  difficult  to  differentiate  between  two  courts 
administering  the  same  law  although  the  remedies  in  one  may 
be  limited  to  common  law  remedies.  Certainly,  the  effect  is, 
apparently,  to  allow  every  common  law  court  to  administer 
the  great  body  of  maritime  law  which  right  has  always  here- 
tofore been  held  to  have  been  granted  exclusively  to  the 
Federal  Courts.78  And  still  more  remarkable  is  it  since  the 
Jensen  opinion  itself  refers  explicitly  to  this  exclusiveness. 

It  is  therefore  submitted  that  the  Federal  Courts  have  been 
in  part  divested  of  their  exclusive  admiralty  and  maritime 
jurisdiction.  Such  an  act  is  unconstitutional  and  should  be 
beyond  the  power  of  any  court  just  as  it  is  beyond  the  power 
of  any  Congress.  There  is  no  higher  tribunal.  Either  this 

75  Cf.  3  Story  on  Const,  527,  530,  and  in  some  salvage  cases. 

79  Cf.  dissenting  opinion  of  Justice  Pitney  in  Jensen  case,  p.  253. 

77  "Is  every  County  Court  a  Court  of  Admiralty?"    53  Am.  L. 
Rev.,  749.    By  Frederic  Cunningham. 

78  The  Moses  Taylor,  4  Wall.,  411,  430;  cf.  Sec.  256,  Judicial  Code, 
Mar.  3,  1911;  The  Hine  vs.  Trevor,  4  Wall.,  555. 


44          RECENT  PROBLEMS  IN  ADMIRALTY  JURISDICTION 

is  the  beginning  of  a  new  era  in  the  admiralty  jurisprudence 
of  the  United  States  or  else  these  decisions  must  be  set  aside 
or  so  ably  explained  by  the  Court  in  the  future  as  to  render 
them  of  little  effect.  The  present  situation  is  uncertain,  dis- 
turbing, and  difficult  of  solution. 

A  late  case  decided  October  5,  1920,  in  the  District  Court 
of  Maine,  Earles  vs.  Howard,79  shows  the  difficulty  of  the 
situation.  The  Court  there  expressed  the  opinion  that  such 
decisions  as  the  Hamilton  and  Sherlock  vs.  Ailing  were  un- 
affected and  that  a  law  of  Maine  giving  damages  for  death 
caused  by  negligence  of  another  could  and  would  be  enforced 
in  an  Admiralty  Court  where  the  death  occurred  on  a  vessel 
in  navigable  water  of  the  State.  To  sum  up,  the  situation, 
therefore,  was  as  follows : 

1 i )  An  Admiralty  court  will  enforce  a  state  statute  giving 
damages  for  death  by  negligence. 

(2)  A  State  common  law  court  can  not  enforce  a  State 
statute  giving  compensation  for  injuries  received  in  maritime 
employments. 

(3)  The  Federal  Court  sitting  as  a  common  law  court  will 
not  apply  the  common  law  rule  of  damages  for  an  injury 
received  on  navigable  waters  but  applies  the  maritime  rule. 

In  view  of  the  situation  and  the  fact  that  the  general  mari- 
time law  did  not  give  a  right  of  action  for  wrongful  death  at 
sea  and  that  the  measure  of  damages  for  wrongful  injury 
was  inadequate,  the  Congress  has  enacted  two  recent  statutes, 
designed  to  readjust  matters  on  a  more  satisfactory  basis. 

First,  by  the  Act  of  March  30,  1920,  the  personal  repre- 
sentative of  one  killed  by  wrongful  act,  neglect  or  default  on 
the  high  seas  and  navigable  waters  is  given  the  right  to  main- 
tain a  suit  for  damages  in  the  District  courts  of  the  United 
States  in  admiralty  against  either  the  vessel,  person  or  cor- 
poration which  would  have  been  liable  if  death  had  not 
ensued.  This  then  is  in  the  nature  of  a  Lord  Campbell's 
Act  for  general  maritime  law.  It  is  not  designed  to  be  ex-' 

79  268  Fed.  R.,  94. 


CONSTITUTIONALITY  OF  STATE  LEGISLATION  45 

elusive  as  the  provisions  of  state  statutes  giving  rights  of 
the  same  sort  are  declared  to  be  unaffected. 

Then  secondly,  by  the  Merchant  Marine  Act  of  1920,  Sec- 
tion 33,  seamen  suffering  personal  injuries  in  the  course  of 
employment  are  enabled  to  maintain  an  action  for  damages 
at  law  and  the  rights  and  remedies  granted  by  former  statutes 
of  the  United  States  in  similar  cases  to  railway  employees 
are  now  extended  to  seamen. 

And  this  section  also  restates  the  Act  of  March  30  relating 
to  death  and  makes  all  similar  railroad  statutes  applicable  and 
regulatory  upon  the  right  conferred  on  the  seaman's  personal 
representative. 

The  Constitutionality  of  the  Amendment 

Subsequent  to  the  passage  of  the  Act  of  October  6,  1917, 
it  was  very  natural  that  several  cases  should  arise  questioning 
its  constitutionality.  Particularly  there  was  the  case  of  The 
Howell,  decided  March  6,  1919,  in  the  District  Court  of  the 
Southern  District  of  New  York.  A  longshoreman  was  in- 
jured while  on  a  lighter  in  New  York  harbor  and  he  insti- 
tuted a  libel  in  rem  for  the  personal  injuries  received.  The 
employer  claimed  that  by  complying  with  the  Workman's 
Compensation  Law  of  New  York,  he,  by  Section  n  of  that 
law,  was  absolved  from  any  liability  arising  under  the  mari- 
time law.  The  state  law  provided  (Section  n)  that  the 
liability  of  an  employer  "  shall  be  exclusive  and  in  place  of 
any  other  liability  whatsoever,  to  such  employee,  his  personal 
representatives,  husband,  parents,  dependents  or  next  of  kin, 
or  anyone  otherwise  entitled  to  recover  damages  at  common 
law  or  otherwise  on  account  of  such  injury  or  death."  The 
District  Court  held  that  since  the  New  York  Act  made  the 
remedy  thereunder  exclusive  and  that  since  Congress  had 
adopted  this  law  by  the  amendment,  the  injured  person  had 
no  remedy  in  admiralty  either  in  personam  or  in  rem.80 

And  on  July  31,  1919,  this  same  attitude  was  adopted  by 
the  District  Court  for  the  Western  District  of  New  York  in 
80257  Fed.  R.,  578. 


46  RECENT  PROBLEMS  IN  ADMIRALTY  JURISDICTION 

White  vs.  John  W.  Cowper  Co.81  The  court  held  that  the 
effect  of  the  amendment  was  to  deprive  the  Federal  Court 
of  jurisdiction,  but  in  applying  to  this  case  said :  "  I  think 
that  since  this  amendment  was  not  passed  until  after  this 
cause  of  action  accrued,  this  court  was  not  deprived  of  juris- 
diction to  determine  the  issues  presented." 

Another  case  was  that  of  Rhode  vs.  Grant  Smith,82  decided 
June  3,  1919,  in  the  District  Court  of  Oregon.  This  was  a 
libel  in  personam  to  recover  for  personal  injuries.  The 
Oregon  Compensation  Act  did  not  contain  any  such  clause  as 
Section  11  of  the  New  York  Act.  Therefore,  the  only  ques- 
tion involved  here  was  whether  the  amendment  itself  made 
the  remedy  under  the  Oregon  Act  exclusive  and  thereby 
divested  the  admiralty  courts  of  their  jurisdiction  in  this 
matter.  The  court  clearly  refused  to  take  this  position,  say- 
ing "  that  where  a  party  seeks  redress  for  a  maritime  tort  in 
an  admiralty  court,  either  in  rem  or  in  personam,  the  rights, 
obligations  and  liabilities  of  the  respective  parties  must  be 
measured  by  the  maritime  law  as  provided  by  Congress  or 
the  general  principles  thereof,  and  that  the  right  cannot  be 
barred,  enlarged  or  taken  away  by  state  legislation." 

Before  the  constitutionality  of  the  amendment  was  brought 
up  before  the  Supreme  Court,  that  Court  had  in  January, 
1919,  the  case  of  Coon  vs.  Kennedy,83  raising  the  question  as 
to  whether  the  amendment  applied  retrospectively  to  injuries 
received  prior  to  October  6,  1917,  and  compensable  under  a 
state  compensation  law  of  New  Jersey.  The  Court  however 
found  the  writ  of  error  improperly  sued  out  and  dismissed  it 
without  passing  on  the  point.  But  a  little  later  in  Peters  vs. 
Veasey84  a  similar  case  came  up  under  the  Louisiana  Com- 
pensation Act,  and  it  was  held  that  the  amendment  was  not 
intended  to  apply  to  a  cause  of  action  which  arose  before  the 
act  was  passed. 

si  260  Fed.  R.,  350. 

82  259  Fed.  R.,  304.  See  also  the  cases  of  Hogan  vs.  Buja,  262 
Fed.,  224,  and  Rhode  vs.  Grant  Smith-Porter  Ship  Co.,  263  Fed.  R., 
204. 

«3  248  U.  S.,  453. 

8*251  U.  S.,  121. 


CONSTITUTIONALITY  OF  STATE  LEGISLATION  47 

Finally,  the  constitutionality  of  the  amendment  was 
brought  squarely  before  the  Court  in  the  Knickerbocker  Ice 
Co.  vs.  Stewart  Case.85  A  maritime  employee  of  the  Com- 
pany was  drowned  while  at  work.  The  New  York  State 
Courts,  in  view  of  the  amendment,  allowed  recovery  under 
the  New  York  Compensation  Act.  Upon  appeal  to  the  Su- 
preme Court  the  question  was  presented  as  to  whether  Con- 
gress had  the  power  to  adopt  state  legislation  prospectively 
or  not.  It  was  held  that  this  would  amount  to  a  transfer  of 
Congressional  legislative  power  to  the  States  and  that  this 
power  is  non-delegable.  Considerable  difficulty  was  encoun- 
tered by  the  Court  in  distinguishing  the  effect  of  this  amend- 
ment from  a  similar  result  obtained  by  the  Webb-Kenyon 
Act  which  seemed  to  adopt  state  legislation  and  was  upheld 
by  the  Supreme  Court  in  the  case  of  Clark  Distilling  Co.  vs. 
Western  Md.  R.  R.86 

In  this  latter  case  it  was  argued  that  Congress  had  exceeded 
its  power  in  enacting  the  sections  of  the  Webb-Kenyon  Act, 
because  the  Act  submitted  liquors  to  the  control  of  the  States 
by  subjecting  interstate  commerce  in  such  liquors  to  present 
and  future  state  prohibitions  and  that  the  law  by  being  pros- 
pective would  include  very  different  state  laws  to  the  detri- 
ment of  uniformity.  The  argument  that  an  illegal  delegation 
of  power  to  the  state  had  been  made  was  declared  by  the 
Court  to  rest  on  a  misconception.  It  was,  in  effect,  not  the 
will  of  the  States  that  made  the  prohibitions  applicable,  but 
the  will  of  Congress,  since  the  application  of  state  prohibi- 
tions would  cease  the  instant  the  act  of  Congress  ceased  to 
apply. 

But  the  Court,  after  practically  admitting  that  in  upholding 
the  Webb-Kenyon  Act  it  had  stretched  the  power  of  Con- 
gress to  the  utmost  limit,  says  that  its  action  in  that  case  can 
be  distinguished  from  its  attitude  in  the  Knickerbocker  Case 
because  of  the  exceptional  nature  of  the  subject  (liquor) 

8«  253  U.  S.,  149. 
88  242  U.  S.,  311. 


48  RECENT   PROBLEMS   IN  ADMIRALTY   JURISDICTION 

there  regulated,  whereas  "  different  considerations  would  ap- 
ply to  innocuous  articles  of  commerce."  It  is  submitted  that 
this  is  an  arbitrary  distinction  adopted  purely  to  suit  the  end 
in  view  and  that  on  strictly  legal  grounds  the  Clark  Distilling 
Case  will  support  the  constitutionality  of  the  amendment  of 
the  saving  clause  as  far  as  the  adoption  of  prospective  legis- 
lation is  concerned. 

The  second  reason  of  the  Court  for  the  unconstitutionally 
of  the  amendment  was  that  the  very  object  of  the  grant  of 
maritime  jurisdiction  to  the  Federal  Government  was  "to 
relieve  maritime  commerce  from  unnecessary  burdens  and 
disadvantages  incident  to  discordant  legislation ;  and  to  estab- 
lish, so  far  as  practicable,  harmonious  and  uniform  rules 
applicable  throughout  every  part  of  the  Union/'  and  "ob- 
viously, if  every  State  may  freely  declare  the  rights  and 
liabilities  incident  to  maritime  employment,  there  will  at  once 
arise  the  confusion  and  uncertainty  which  framers  of  the 
Constitution  both  foresaw  and  undertook  to  prevent." 

The  Hamilton  Case  was  almost  overlooked  and  in  fact  was 
brushed  aside  with  a  mere  recognition  that  the  Court  had  at 
that  time  allowed  a  state  statute  to  supplement  the  maritime 
law  to  some  extent,  but  that  the  "  doctrine  of  the  Hamilton 
may  not  be  extended  to  such  a  situation  "  as  at  present  con- 
fronted the  Court.  And  in  picturing  the  situation  the  Court 
seems  to  fall  again  into  the  same  error,  which  the  writer  has 
repeatedly  noted  in  discussing  the  Jensen  Case  above. 

But  here  the  state  enactment  prescribes  exclusive  rights  and  lia- 
bilities, undertakes  to  secure  their  observance  by  heavy  penalties  and 
onerous  conditions,  and  provides  novel1  remedies  incapable  of  en- 
forcement by  an  Admiralty  court. 

There  is  no  question  whatever  about  enforcement  by  an 
admiralty  court.  If  the  amendment  had  been  held  consti- 
tutional the  admiralty  courts  would  never  have  seen  any  cases 
arising  under  the  state  acts.  It  was  again  purely  a  case  of 
enforcement  of  state  law  in  a  State  Court  and  this  is  denied. 
Prior  to  these  decisions  no  doubt  would  have  been  entertained 
on  the  basis  of  any  previous  Supreme  Court  decisions  as  to 


CONSTITUTIONALITY  OF  STATE  LEGISLATION  49 

the  constitutionality  of  such  an  amendment  as  the  Johnson 
Amendment. 

The  State  Courts  would  be  assumed  to  have  jurisdiction 
and  no  amendment  would  be  necessary,  as  Mr.  Chief  Justice 
Marshall  has  said  in  the  consideration  of  the  extension  of 
judicial  power  to  all  cases  of  admiralty  and  maritime  juris- 
diction in  the  early  case  of  United  States  vs.  Beavans : 8T 

It  is  observable,  that  the  power  of  exclusive  legislation  (which  is 
jurisdiction)  is  united  with  cession  of  territory  which  is  to  be  the 
free  act  of  the  states.  It  is  difficult  to  compare  the  two  sections  to- 
gether, without  feeling  a  conviction,  not  to  be  strengthened  by  any 
commentary  on  them,  that,  in  describing  the  judicial  power,  the 
framers  of  our  constitution  had  not  in  view  any  cession  of  territory, 
or,  which  is  essentially  the  same,  of  general  jurisdiction. 

It  is  not  questioned,  that  whatever  may  be  necessary  to  the  full 
and  unlimited  exercise  of  admiralty  and  maritime  jurisdiction,  is  in 
the  government  of  the  union.  Congress  may  pass  all  laws  which  are 
necessary  and  proper  for  giving  the  most  complete  effect  to  this 
power.  Still  the  general  jurisdiction  over  the  place,  subject  to  the 
grant  of  power,  adheres  to  the  territory,  as  a  portion  of  sovereignty 
not  yet  given  away.  The  residuary  powers  of  legislation  are  still 
in  Massachusetts. 

And  furthermore,  said  the  court  in  the  New  Jersey  Steam 
Navigation  Co.  vs.  Merchants  Bank : 88 

The  saving  clause  was  probably  inserted  from  abundant  caution, 
lest  the  exclusive  terms  in  which  the  power  is  conferred  on  the  dis- 
trict courts  might  be  deemed  to  have  taken  away  the  concurrent 
remedy  which  had  before  existed.  This  leaves  the  concurrent  power 
where  it  stood  at  common  law. 

But  the  Supreme  Court,  divided  five  to  four  as  before,  has 
now  decided  otherwise,  and  the  result  is  that  the  only  solution 
remains  in  the  enactment  of  a  Federal  Seaman's  Compensa- 
tion Act.  Two  bills  have  been  drafted  for  presentation  to 
the  first  regular  session  of  the  67th  Congress.89  The  author 
has  been  associated  in  the  preparation  of  these  bills  and  be- 
lieves it  will  be  of  interest  to  point  out  one  or  two  of  the  chief 

*7  3  Wheat,  336,  386. 

*8  6  Howard,  at  390. 

89  One  prepared  by  the  American  Association  for  Labor  Legisla- 
tion and  the  other  by  the  United  States  Shipping  Board.  They  are 
fundamentally  of  a  similar  nature,  differing  chiefly  in  scale  of  com- 
pensation and  death  benefit. 


50  RECENT  PROBLEMS  IN  ADMIRALTY  JURISDICTION 

difficulties  in  providing  a  workable  plan  of  compensation  in 
view  of  the  jurisdictional  difficulties. 

Pending  Federal  Seamen's  Compensation  Acts 

Perhaps  the  most  difficult  problem  presented  in  the  prep- 
aration of  a  Federal  Act  of  this  nature  is  that  of  determining 
its  scope.  When  it  is  seen  what  a  great  variety  of  occupa- 
tions exist,  that  are  quasi  maritime  in  nature,  and  in  which 
the  employees  are  frequently  shifted  from  work  on  or  about 
a  vessel  to  work  on  piers,  wharves,  and  dock  railways,  thereby 
changing  their  particular  status  as  viewed  in  the  light  of  two 
or  more  jurisdictions,  the  problem  becomes  very  complicated. 
And  as  yet  it  cannot  be  said  just  what  employments  will  be 
regarded  by  the  court  as  maritime,  and  therefore  subject  only 
to  federal  compensation.  Therefore  the  proposed  act,  in 
order  to  save  its  constitutionality,  must  of  necessity  embody 
general  terms.  As  drafted  at  present,  it  will  apply : 

(i)  To  employment,  as  a  seaman,  on  a  vessel  which  is  subject  to 
the  admiralty  jurisdiction  of  the  courts  of  the  United  States.  (2) 
To  employment,  as  a  shipwright,  rigger  or  in  any  similar  capacity, 
on  or  about  a  vessel,  while  engaged  in  work  which  is  subject  to  the 
admiralty  jurisdiction  of  the  Courts  of  the  United  States.  (3)  To 
employment  in  the  work  of  handling  cargo  or  supplies  for  or  out  of 
a  vessel  engaged  in  interstate  or  foreign  commerce,90  after  the  re- 
ceipt by  the  ship-owner  or  charterer  of  such  cargo  or  supplies,  upon 
dock,  wharf,  levee  or  other  landing  place  at  the  port  or  place  of 
loading,  for  loading  on  the  vessel,  and  during  the  unloading  of  a 
vessel  of  its  cargo  and  before  the  delivery  thereof  by  the  ship-owner 
or  charterer,  upon  dock,  wharf,  levee  or  other  landing  place  at  the 
port  or  place  of  discharge.91 

These  general  terms  would,  alone,  leave  many  employers 
in  considerable  doubt  as  to  whether  the  act  applied  in  their 
particular  case.  To  relieve  this  uncertainty  and  to  reduce 
the  probable  large  number  of  suits  growing  out  of  it,  it  is 
proposed  to  establish  a  system  of  registration  controlled  by 
the  Department  of  Commerce  and  to  grant  that  Department 

90  Note  that  in  enacting  this  particular  cl'ause  Congress  will  derive 
the  legislative  power  from  the  commerce  clause  and  not  the  Admi- 
ralty clause. 

91  Certain  exceptions  have  been  made  as  to  foreign,  to  state  owned 
vessels,  and  to  employment  on  vessels  of  the  United  States  per- 
formed wholly  in  a  foreign  jurisdiction. 


CONSTITUTIONALITY  OF  STATE  LEGISLATION 


51 


the  power  to  name  and  exempt  such  employments  as  are  not 
subject  to  the  act. 

Of  course  in  some  employments  it  will  undoubtedly  be 
necessary  for  an  employer  to  insure  his  employees  under  two 
funds,  the  State  and  the  Federal,  owing  to  the  fact  that  at 
times  the  men  may  be  employed  in  purely  non-maritime  work. 
As  to  whether  this  will  result  in  an  undue  hardship  upon 
certain  employers  is  yet  to  be  seen,  but  it  is  believed  that  it 
will  not,  as  similar  conditions  already  exist  in  railroad  em- 
ployment and  as  yet  the  employers  so  situated  there  have  not 
generally  regarded  or  found  it  to  be  an  oppressive  burden. 

A  striking  example  of  such  a  situation  may  arise  in  the 
work  of  stevedores  and  longshoremen.  These  men  incur  in- 
juries while  at  work  on  vessels  in  a  loading  or  discharging 
operation  or  they  may  be  injured  in  work  wholly  performed 
on  land.  In  such  an  employment  as  this  two  views  can  be 
taken  by  the  court  in  determining  the  applicability  of  the 
Federal  Act.  It  is  possible  for  the  Court  to  adopt  a  narrow 
view  and  thus  limit  greatly  the  field  of  injuries  compensable 
under  the  Act.  This  will  result,  if  it  is  judicially  determined 
that  the  whole  question  of  compensation  for  injuries  sounds 
in  tort.  It  may  be  that  such  personal  injuries  as  contem- 
plated by  this  act  will  be  classed  as  maritime  torts  and  under 
the  admiralty  grant : 

The  jurisdiction  of  the  Admiralty  over  maritime  torts  does  not 
depend  upon  the  wrong  having  been  committed  on  board  the  vessel, 
but  upon  its  having  been  committed  upon  the  high  seas  or  other  navi- 
gable waters.  .  .  .  The  jurisdiction  of  the  admiralty  does  not  depend 
upon  the  fact  that  the  injury  was  inflicted  by  the  vessel,  but  upon 
the  locality — the  high  seas,  or  navigable  waters  where  it  occurred. 
Every  species  of  tort  however  occurring,  and  whether  on  board  a 
vessel  or  not,  if  upon  the  high  seas  or  navigable  waters,  is  of  admi- 
ralty cognizance.92 

Should  the  Supreme  Court  hold  that  compensation  sounds 
in  tort,  then  State  Acts  will  apply  to  injuries  on  land. 

But  it  is  believed  by  the  writer  that  it  is  now  being  gen- 
erally held  that  compensation  is  in  the  nature  of  a  contractual 
obligation  and  that  this  is  the  broader  attitude  which  the 

92  The  Plymouth,  3  Wall.,  20,  cited  in  Atlantic  Transport  Co.  vs. 
Imbrovek,  234  U.  S.,  59-60. 


52  RECENT  PROBLEMS  IN  ADMIRALTY  JURISDICTION 

Court  will  adopt.  At  first,  many  of  the  earlier  State  Courts 
decided  that  there  was  such  an  element  of  tort,  that  it  was 
controlling;  but  recently  the  opinions  have  swung  the  other 
way  and  the  Doey  Case93  in  New  York  has  for  that  juris- 
diction definitely  established  the  proposition  that  compensa- 
tion liability  sounds  in  contract. 

In  the  event  of  this  latter  view,  it  will  not  be  the  locus  of 
the  injury  which  is  the  determining  factor  but  it  will  be  the 
nature  of  the  employment  itself  that  will  set  the  limits  and 
bounds  of  the  federal  legislative  power.  And  indeed  this 
may  explain  the  reason  why  the  Federal  Courts  have  in  the 
past  recognized  and  enforced  state  death  statutes  as  regards 
maritime  injuries,  whereas  the  state  compensation  statutes 
when  applied  to  maritime  injuries  have  been  declared  uncon- 
stitutional. Although  the  distinction  has  as  yet  not  been 
drawn  in  the  cases,  it  is  expected  that  the  answer  will  be 
that  one  is  in  tort  and  the  other  is  in  contract. 

However,  this  explanation  will  not  bear  much  weight  when 
viewed  in  the  light  of  the  objections  relating  to  the  desired 
uniformity  of  maritime  law  and  the  freeing  of  commerce 
from  the  restrictions  and  burdens  of  state  legislation. 

As  a  result  of  this  uncertainty  it  is  proposed  to  insert  a 
special  provision  as  to  stevedores,  longshoremen,  etc.,  in  the 
Act,  whereby  personal  injuries  received  in  such  employments 
in  a  State  or  on  the  territorial  waters  thereof  may  be  com- 
pensated under  the  state  statute  "provided  that  the  consti- 
tutionality of  such  State  enactment  is  sustained  by  the 
courts." 

The  arrangement  and  establishment  of  the  necessary  ma- 
chinery of  administration  of  such  a  comprehensive  Act  as  is 
proposed  has  presented  its  difficulties  as  well  but  it  is  highly 
probable  that  the  Act  will  be  administered  by  districts  corre- 
sponding to  the  federal  judicial  districts  and  that  in  each 
there  will  be  created  one  or  more  Commissioners  for  Com- 
pensation who  will  be  officers  of  the  District  Court.  Thus 

93 120  N.  E.  Rept,  page  53. 


CONSTITUTIONALITY  OF  STATE  LEGISLATION  53 

it  will  be  linked  up  closely  with  the  judicial  system  and  sub- 
ject to  the  latter 's  supervision. 

Whatever  the  ultimate  form  this  Act  will  take  it  is  ex- 
tremely urgent  that  Congress  act  at  once,  and  supply  an 
adequate  compensation  for  the  employees  in  maritime  work. 
An  immediate  relief  will  be  noticed  from  the  present  un- 
settled labor  conditions  prevailing  in  our  large  seaports.  So 
difficult  has  the  situation  been  in  tiding  over  the  period  since 
the  Jensen  decision  that  almost  all  of  the  steamship  owners 
have  been  impelled  to  carry  their  own  insurance  to  cover 
these  injuries  and  to  make  gratuitous  payments  thereunder. 
This  system  is  unwieldy,  uncertain,  and  unsatisfactory,  and 
can  only  be  cleared  up  by  the  pending  Act. 


CHAPTER  II 

JURISDICTIONAL  IMMUNITY  OF  PUBLIC  VESSELS  AND  GOODS 

The  world-wide  activity  in  commercial  and  shipping  enter- 
prises, resulting  from  the  war  operations  of  the  belligerent 
nations  in  the  recent  conflict,  reached  such  enormous  propor- 
tions that  no  allied  or  neutral  port  on  the  seven  seas  was  free 
from  continual  maritime  shipments  of  nationally  owned  car- 
goes of  war  supplies. 

The  most  important  harbors  of  the  Allies  were  filled  with 
foreign  ships  loading  and  unloading  war  munitions  and  sup- 
plies as  well  as  great  masses  of  foodstuffs  destined  for  public 
uses.  Every  available  vessel  was  impressed  into  the  service 
of  the  governments  in  order  that  ultimate  victory  might  be 
assured.  The  character  of  modern  warfare  demanded  un- 
precedented shipments  and  the  entry  of  the  governments  into 
an  international  business  to  an  extent  never  before  experi- 
enced. Under  the  power  of  legislative  Acts  and  executive 
proclamations  ships  were  rapidly  built,  private  vessels  were 
bought,  or  chartered,  or  requisitioned  for  government  service. 

The  result  was  that  hundreds  of  former  merchant  vessels 
took  on  a  public  or  quasi-public  character  as  instruments  of 
sovereignty.  The  methods  of  operating  these  vessels  were 
varied  and,  in  instances,  unusual.  Some  were  manned  by 
officers  and  enlisted  men  of  the  naval  forces  of  the  govern- 
ment, some  were  armed  and  others  were  not,  still  others  were 
operated  by  the  original  owners  under  a  master  and  crew 
employed  and  paid  by  the  government.  Sometimes  ships  of 
the  naval  forces  were  chartered  to  private  companies  for  the 
carriage  of  a  private  cargo,  while  on  the  other  hand  merchant 
vessels  were  chartered  by  the  governments  for  the  transpor- 
tation of  a  government-owned  cargo  while  the  actual  posses- 
sion and  direction  of  the  ship  remained  in  the  owners  who 
hired  and  paid  their  own  master  and  crew  to  operate  it.  The 
foregoing  differences,  and  the  difficulty  of  determining,  in 

54 


IMMUNITY  OF  PUBLIC  VESSELS  AND  GOODS  55 

every  case,  the  effect  of  national  requisition  upon  the  char- 
acter of  a  vessel,  have  led  to  a  wide  divergence  of  opinion  as 
to  the  extent  to  which  a  ship  in  any  particular  instance  has 
become  clothed  with  the  rights  and  immunities  of  sovereignty. 

The  Admiralty  Courts  have  been  faced  again  and  again 
with  suits  against  these  ships  arising  out  of  claims  for  dam- 
age in  collision,  claims  for  salvage,  for  loss  and  damage  of 
cargo,  and  for  breach  of  charter  parties  and  other  maritime 
contracts  unperformed  by  reason  of  a  national  requisition 
intervening.  A  denial  of  jurisdiction  is  made  in  these  cases, 
and  it  then  becomes  the  duty  of  the  District  Courts  to  exam- 
ine into  the  principles  of  the  immunity  of  sovereigns  and 
their  property,  from  the  jurisdiction  of  a  foreign  tribunal  and 
the  accepted  doctrines  of  international  comity  in  regard  to 
these  immunities. 

So  complex  have  been  the  circumstances  in  the  majority 
of  the  cases  which  have  arisen  that  any  a  priori  reasoning  in 
an  attempt  to  definitely  establish  principles  and  rules,  govern- 
ing the  immunity  from  the  jurisdiction  of  the  foreign  courts, 
which  can  be  applied  to  all  cases,  will  prove  very  unsatis- 
factory and  will  not  accord  with  the  opinions  which  have  been 
handed  down  in  a  number  of  instances. 

It  is,  therefore,  the  writer's  purpose  to  examine  first  of  all 
the  leading  English  and  American  decisions  which  have 
enunciated  some  of  the  principles  governing  the  immunity  of 
foreign  public  vessels  and  goods,  and  then,  from  the  more 
recent  cases  deduct,  if  possible,  certain  exceptions  and  vari- 
ations from  the  general  rule  which  the  courts  have  been  led 
to  make  growing  out  of  the  necessities  for  justice  and  the 
exigencies  of  circumstances. 

And  in  the  way,  a  more  exact  delimitation  of  the  present 
status  of  the  law  applied  in  these  cases  may  be  arrived  at. 
However,  it  will  be  admitted  that  in  certain  jurisdictions  very 
different  tendencies  will  be  observed,  which  are  not  apparent, 
or  do  not  exist  in  others.  These  may  often  be  explained, 
nevertheless,  on  political  and  historical  grounds. 


56  RECENT  PROBLEMS  IN  ADMIRALTY  JURISDICTION 

Principles  of  Exemption  from  Local  Jurisdiction 

Several  well-known  exemptions  from  local  jurisdiction  are 
accorded  under  the  customs  of  nations  and  the  practice  of 
international  comity. 

Chief  among  these  is  the  exemption  of  the  person  of  the 
sovereign  from  arrest  or  detention  within  a  foreign  terri- 
tory. So  well  established  is  this  principle  that  it  is  not 
necessary  to  review  the  cases.  A  single  reference  to  an 
English  case1  of  rather  unusual  circumstances  will  show  to 
what  extreme  this  doctrine  is  carried.  The  Sultan  of  Johore 
while  living  incognito  in  England  under  an  assumed  name 
entered  into  a  contract  to  marry.  Action  for  breach  of 
promise  was  subsequently  brought  against  him  as  Albert 
Baker.  A  certificate  from  the  British  Colonial  Office  was 
forwarded  to  the  court,  stating  that  Johore  was  an  inde- 
pendent state  and  that  the  defendant  was  the  sovereign  ruler 
of  it.  The  court  accepted  this  as  conclusive  as  to  the  status 
of  such  sovereign.  And,  although  it  was  argued  that  the 
immunity  attached  only  to  acts  done  by  a  sovereign  in  his 
character  as  sovereign,  and  that  therefore  he  had  waived  his 
immunity  and  privilege  by  coming  into  the  country  and  mak- 
ing contracts  as  a  private  individual,  the  court  nevertheless 
dismissed  the  case ;  all  the  judges  concurred  in  the  view  that 
he  could  not  be  subjected  to  the  jurisdiction  unless  he  volun- 
tarily submitted  to  it,  and  that  he  was  not  required  to  elect 
whether  he  would  submit  until  the  court  sought  to  subject 
him  to  its  process.2 

A  second  class,  to  which  immunity  is  granted  in  all  coun- 
tries, is  that  of  ambassadors  and  foreign  ministers. 

Immunity  also  extends  to  foreign  troops  and  all  military 
forces  which  are  permitted  to  pass  through  the  territory  under 
a  special  license  granted  by  the  government.  Another  large 
class  of  exemptions  is  found  in  countries  not  possessing 
European  civilization,  chiefly  in  the  East.  This  exemption 
from  the  local  law  is  termed  "  extraterritoriality  "  and  is  gen- 

iMighell  vs.  Sultan  of  Johore,  Q.B.D.,  vol.  i  (1894),  p.  149. 
2  Cf .  Moore,  Int.  Law  Digest,  vol.  ii,  p.  559. 


IMMUNITY  OF  PUBLIC  VESSELS  AND  GOODS  57 

erally  secured  by  treaties.  In  those  countries,  due  to  the 
diversity  of  customs,  laws  and  habits,  jurisdiction  is  exer- 
cised over  foreigners  by  their  respective  diplomatic  or  con- 
sular officials. 

The  above  comprise  in  general  the  classes  of  individuals 
that  are  exempt  from  civil  process.  (It  is  not  here  proposed 
to  enter  into  an  examination  of  the  exemptions  from  local 
criminal  jurisdiction  applicable  to  these  classes.) 

Immunity  extends,  however,  to  certain  things  as  well  as  to 
individuals.  Among  these,  there  are  two  main  classes, 
namely,  Public  Vessels,  including  ships  of  war,  and  Public 
Property,  and  it  is  these  with  which  we  are  chiefly  concerned 
in  solving  the  particular  problems  that  have  recently  arisen  in 
Admiralty  and  maritime  jurisprudence. 

One  of  the  earliest  cases  in  American  jurisprudence  in- 
volving a  consideration  of  the  whole  question  of  immunity 
and  international  comity  was  the  famous  case  of  the  Ex- 
change,3 the  remarkable  opinion  in  which  was  written  by 
Chief  Justice  Marshall  in  1812.  No  better  method  can  be 
adopted  for  opening  up  the  underlying  principles  and  the 
reasons  for  the  granting  of  immunity  than  by  the  use  of 
liberal  quotations  from  that  eminent  jurist,  as  follows: 

The  jurisdiction  of  the  nation  within  its  own  territory  is  necessarily 
exclusive  and  absolute.  It  is  susceptible  of  no  limitation  not  im- 
posed by  itself.  Any  restriction  upon  it,  deriving  validity  from  an 
external  source,  would  imply  a  diminution  of  its  sovereignty  to  the 
extent  of  the  restriction,  and  an  investment  of  that  sovereignty  to 
the  same  extent  in  that  power  which  could  impose  such  restriction. 

All  exceptions,  therefore,  to  the  full  and  complete  power  of  a 
nation  within  its  own  territories,  must  be  traced  up  to  the  consent  of 
the  nation  itself.  They  can  flow  from  no  other  legitimate  source. 
This  consent  may  be  either  expressed  or  implied.  .  .  .  The  world  be- 
ing composed  of  distinct  sovereignties,  possessing  equal  rights  and 
equal'  independence,  whose  mutual  benefit  is  promoted  by  intercourse 
with  each  other,  and  by  an  interchange  of  those  good  offices  which 
humanity  dictates  and  its  wants  require,  all  sovereigns  have  con- 
sented to  a  relaxation  in  practice,  in  cases  under  certain  peculiar 
circumstances,  of  that  .absolute  and  complete  jurisdiction  within 
their  respective  territories  which  sovereignty  confers. 

A  nation  would  justly  be  considered  as  violating  its  faith,  although 
that  faith  might  not  be  expressly  plighted,  which  should  suddenly 

3  The  Schooner  Exchange  vs.  McFaddon  &  Others,  7  Cranch,  116. 


58  RECENT  PROBLEMS  IN  ADMIRALTY  JURISDICTION 

and  without  previous  notice,  exercise  its  territorial1  powers  in  a  man- 
ner not  consonant  to  the  usages  and  received  obligations  of  the  civi- 
lized world. 

This  full  and  absolute  territorial  jurisdiction  being  alike  the  attri- 
bute of  every  sovereign,  and  being  incapable  of  conferring  extra- 
territorial power,  would  not  seem  to  contemplate  foreign  sovereigns 
nor  their  sovereign  rights  as  its  objects.  One  sovereign  being  in  no 
respect  amenable  to  another ;  and  being  bound  by  obligations  of  the 
highest  character  not  to  degrade  the  dignity  of  his  nation,  by  plac- 
ing himself  or  its  sovereign  rights  within  the  jurisdiction  of  another, 
can  be  supposed  to  enter  a  foreign  territory  only  under  an  express 
license,  or  in  the  confidence  that  the  immunities  belonging  to  his  in- 
dependent sovereign  station,  though  not  expressly  stipulated,  are 
reserved  by  implication,  and  will  be  extended  to  him. 

This  perfect  equality  and  absolute  independence  of  sovereigns, 
and  this  common  interest  impelling  them  to  mutual  intercourse,  and 
an  interchange  of  good  offices  with  each  other,  have  given  rise  to  a 
cl'ass  of  cases  in  which  every  sovereign  is  understood  to  waive  the 
exercise  of  a  part  of  that  complete  exclusive  territorial  jurisdiction, 
which  has  been  stated  to  be  the  attribute  of  every  nation. 

Among  these  enumerated  classes  is  that  of  the  foreign 
military  forces.  Ships  of  war  are  indeed  within  this  class 
by  analogy,  but  it  is  not  to  be  assumed  that  they  are  governed 
by  the  same  principles  of  comity  as  the  land  forces  in  deter- 
mining their  immunity. 

The  Immunity  Accorded  Ships  of  War 

In  1811,  the  Balaou,  an  armed  public  vessel  of  France, 
entered  the  port  of  Philadelphia.  A  libel  was  filed  in  the 
District  Court  against  the  vessel  by  M.  Faddon  and  others 
who  alleged  that  she  was  originally  the  Schooner  Exchange, 
of  which  they  were  the  sole  owners,  and  that  she  had  the 
year  before  been  unlawfully  captured  at  sea  by  persons  acting 
under  the  orders  of  the  French  Government.  The  point 
involved,  therefore,  was  whether  an  American  citizen  could 
assert  in  an  American  court  a  title  to  an  armed  national 
vessel  of  a  foreign  country,  found  within  the  waters  of  the 
United  States,  or  was  the  ship  immune  from  jurisdiction. 

The  rule  in  the  case  of  troops  and  other  land  forces  is  that 
their  exemption  depends  upon  an  express  license  granted  by 
the  Government.  This  license  cannot  be  presumed.  But 
this  rule  is  not  equally  applicable  to  war-ships,  says  Marshall, 


IMMUNITY  OF  PUBLIC  VESSELS  AND  GOODS  59 

for  if  there  is  no  express  prohibition  of  entry,  the  ports  are 
considered  open.  Vessels  of  war,  therefore,  enter,  in  the 
absence  of  treaty  stipulations,  under  an  implied  license.  The 
question  then  arises  as  to  why  vessels  of  war  should  be  ex- 
empt and  private  merchant  vessels  are  not,  when  both  classes 
enter  under  an  implied  license. 

In  the  first  place,  it  is  impossible  "to  conceive,  whatever 
may  be  the  construction  as  to  private  ships,  that  a  prince  who 
stipulates  a  passage  for  his  troops,  or  an  asylum  for  his  ships 
of  war  in  distress,  should  mean  to  subject  his  army  or  his 
navy  to  the  jurisdiction  of  a  foreign  sovereign." 

Private  merchant  vessels,  on  the  other  hand,  like  individual 
merchants,  who  spread  themselves  indiscriminately  through 
a  foreign  nation,  were  not  exempt,  since  to  permit  them  to  be 
would  prove  "inconvenient  and  dangerous  to  society  and 
would  subject  the  laws  to  continual  infraction,  and  the  gov- 
ernment to  degradation." 

The  foreign  government  would  likewise  have  no  real  rea- 
son for  desiring  immunity  for  its  private  merchant  ships. 
They  are  not  employed  by  the  government  nor  are  they  en- 
gaged in  national  pursuits.  While  on  the  contrary  a  war-ship 
acts  under  the  immediate  and  direct  command  of  the  sover- 
eign and  is  employed  by  him  in  national  objects.  Any  inter- 
ference would  affect  his  power  and  his  dignity. 

It  is  to  be  noticed  that  in  his  opinion  Marshall  makes  no 
reference  to  the  older  legal  fiction,  sometimes  termed  the 
territoriality  of  a  vessel,  a  doctrine  that  ships  are  floating 
portions  of  the  country  upon  which  they  depend  and  are  thus 
a  continuation  or  prolongation  of  territory,  and  indeed  this 
fiction  is  now  almost  universally  put  aside  as  untenable.4 

Another  important  point  which  should  be  observed  in  the 
opinion  is,  that  the  Balaou  is  not  described  as  an  "  armed  ship 
of  war  "  but  as  "  a  certain  public  vessel  belonging  to  his  Im- 
perial Majesty,  and  actually  employed  in  his  service."  Thus 
a  larger  class  was  admitted  to  exemption. 

4  Cf.  Hall,  Int.  Law.,  p.  212,  sec.  77. 


60  RECENT  PROBLEMS  IN  ADMIRALTY  JURISDICTION 

In  1879  the  English  Admiralty  Court  unhesitatingly  ac- 
corded immunity  to  a  famous  old  frigate  of  the  United 
States.6  The  Constitution,  while  returning  home  from  the 
Paris  Exposition  with  a  cargo  of  American  exhibits  belong- 
ing to  private  parties,  was  stranded  on  the  south  coast  of 
England  and  received  salvage  services  from  an  English  tug 
which  brought  an  action  against  the  ship  and  her  cargo  for 
salvage  remuneration.  The  American  Minister  filed  a  sug- 
gestion, through  solicitors,  that  the  Constitution  was  a  na- 
tional ship  of  war  and  that  her  cargo  consisted  of  property 
of  which  the  United  States  Government  had  for  public  pur- 
poses charged  itself  with  the  care  and  protection.  The  court 
then  held  that  no  warrant  for  her  arrest  could  issue,  either  in 
respect  of  ship  or  cargo. 

A  similar  case  had  arisen  in  1819  in  England,6  where  a 
Dutch  ship  of  war  with  a  valuable  cargo  of  spices  and  other 
goods  on  board  was  libeled,  ship  and  cargo,  for  salvage  serv- 
ices rendered.  It  is  true  that  the  ship  and  cargo  were  held 
liable  under  the  salvage  lien,  but  this  was  not  until  after  the 
Dutch  Government  had  submitted  to  the  jurisdiction  by  re- 
questing that  the  amount  of  recompense  due  the  salvors 
should  be  awarded  by  the  Admiralty  Court. 

It  therefore  can  be  announced  as  a  general  proposition  of 
international  law  and  comity  that  armed  ships  of  war  and 
their  cargoes  are  exempt  from  local  process  and  arrest. 
However,  there  is  one  exception  as  regards  cargo  which  is 
well  illustrated  by  the  American  case  of  the  Santissima 
Trinidad.7 

A  libel  was  filed  by  the  Consul  of  Spain  in  the  District 
Court  of  Virginia  in  1817  against  the  cargoes  of  two  armed 
vessels  of  the  United  Provinces  of  Rio  de  la  Plata.8  These 
libeled  cargoes  were  asserted  to  be  part  of  the  cargoes  of  two 

5  The  Constitution,  L.R.,  4  P.  D.,  39  (1879). 

6  The  Prins  Frederik,  2  Dodson,  451. 

7  7  Wheaton,  283  (1822). 

8  During  the  existence  of  the  Civil  War  between  Spain  and  her 
Colonies  and  previous  to  the  acknowledgment  of  the  independence 
of  the  Tatter  by  the  United  States,  the  colonies  were  deemed  bellig- 
erent nations  and  therefore  entitled  to  all  the  sovereign  rights  of  war 
against  their  enemy. 


IMMUNITY  OF  PUBLIC  VESSELS  AND  GOODS  6l 

Spanish  ships,  which  had  been  unlawfully  and  piratically 
captured  on  the  high  seas  by  the  former  armed  vessels.  Fur- 
thermore, it  was  claimed  that  the  capturing  vessels  had  been 
originally  equipped,  fitted  out  and  armed  in  the  United  States 
in  violation  of  the  neutrality  of  this  country.  The  question 
at  issue  was  then,  granting  that  public  ships  of  war  are  ex- 
empted from  local  jurisdiction,  whether  all  property  captured 
by  such  ships  is  exempt  also  on  the  ground  that  it  was  cap- 
tured for  and  by  the  sovereign,  and  that  no  sovereign  is 
answerable  for  his  acts  to  the  tribunals  of  any  foreign  power. 
The  Supreme  Court  discussed  the  principles  of  immunity, 
pointing  out  that  it  was  not  founded  upon  any  notion  that  a 
foreign  sovereign  had  an  absolute  right,  in  virtue  of  his  sov- 
ereignty, to  an  exemption  of  this  property,  but  that  it  arose 
from  the  presumed  consent  or  license  of  nations.  And,  says 
Story : 

It  would  indeed  be  strange  if  a  license  implied  by  law  from  the 
general  practice  of  nations,  for  the  purpose  of  peace,  should  be  con- 
strued as  a  license  to  do  wrong  to  the  nation  itself,  and  justify  the 
breach  of  all  those  obligations  which  good  faith  and  friendship,  by 
the  same  implications,  impose  upon  those  who  seek  an  asylum  in  our 
ports.  .  .  .  Whatever  may  be  the  exemption  of  the  public  ship  her- 
self, and  of  her  armament  and  munitions  of  war,  the  prize  property 
which  she  brings  into  our  ports  is  liable  to  the  jurisdiction  of  our 
courts,  for  the  purpose  of  examination  and  inquiry  and  if  a  proper 
case  can  be  made  out,  for  restitution  to  those  whose  possession  has 
been  divested  by  a  violation  of  our  neutrality,  and  if  the  goods  are 
landed  from  the  public  ship  in  our  ports,  by  the  express  permission 
of  our  own  government,  that  does  not  vary  the  case,  since  it  in- 
volves no  pledge  that  if  illegally  captured  they  shall  be  exempted 
from  the  ordinary  operation  of  our  laws. 

The  liability  of  the  cargoes  of  the  war-ships  in  this  case 
was  decided  on  the  well  known  doctrine  of  prize  that  prop- 
erty captured  in  breach  of  the  laws  of  neutrality  is  held  by 
the  prize  courts  of  the  neutral  state  not  to  be  lawful  prize.9 
These  circumstances  will  warrant  a  denial  of  the  usual  ex- 
emption. As  a  further  explanation  of  the  principle  an- 
nounced in  the  Santissima  Trinidad,  however,  attention  must 
be  called  to  a  related  doctrine  of  prize  law  to  the  effect  that 

9Wheaton,  International  Law,  pt.  4,  c.  2,  par.  14;  c.  3,  par.  11-13; 
Halleck,  International  Law,  c.  22,  par.  22-24;  I  Phillimore,  Interna- 
tional Law,  371 ;  3  Phillimore,  ibid.,  452-456. 


62  RECENT  PROBLEMS   IN  ADMIRALTY  JURISDICTION 

the  trial  of  prizes  belongs  exclusively  to  the  courts  of  the 
country  of  the  captors.10 

Troop-ships  and  Transports. — In  1842,  the  brig  of  a  Brit- 
ish Shipping  Company  was  run  down  in  the  English  Channel 
by  Her  Majesty's  troop-ship  Athol.  Upon  a  suit  for  damage 
the  court  refused  to  exercise  jurisdiction.11  Nor  would  it 
issue  a  monition  against  the  Lords  Commissioners  of  the 
Admiralty  to  answer  in  the  suit.12  These  Lords  however  did 
later  voluntarily  appear  and  jurisdiction  was  thereupon  exer- 
cised and  damages  awarded.  And  similarly  a  transport 
which  was  arrested  under  a  warrant  from  the  Irish  Court  of 
Admiralty  in  a  cause  of  collision  was  released  by  that  court 
upon  its  being  shown  that  she  was  the  property  of  the  Crown 
and  employed  in  the  public  service.13 

In  the  Thomas  A.  Scott,14  a  transport  ship  owned  by  the 
United  States,  but  not  commissioned,  was  exempted  and  the 
general  doctrine  was  announced  that  all  public  property  in 
the  possession  of  the  Government  for  public  purposes  is 
immune  from  legal  process.  Conversely  civil  salvage  is  al- 
lowed in  admiralty  against  a  government  transport,  which 
has  been  captured  and  abandoned  by  the  enemy,  and  found 
by  salvors  in  the  situation  of  a  derelict  not  in  the  possession 
of  the  Government.15 

10  Justice  Story  in  the  case  of  the  Invincible,  2  Gallison,  29  (1814), 
adhered  to  this  doctrine.  The  Invincible  was  a  French  private 
armed  ship  duly  commissioned  as  a  cruiser,  captured  by  the  British 
and  subsequently  recaptured  by  an  American  privateer,  and  carried 
into  Portland  and  proceeded  against  in  the  District  Court  of  Maine 
as  prize  of  war.  Two  claims  were  set  up  against  the  ship,  one  by  the 
French  Consul  and  another  by  American  owners  of  another  ship, 
the  Mt.  Hope.  This  latter  claim  was  for  damages  caused  by  the  In- 
vincible when  it  had  captured  and  carried  off  the  Mt.  Hope  on  the 
high  seas.  The  question  therefore  was  as  to  the  legality  of  the  cap- 
ture of  the  Mt.  Hope  by  the  Invincible.  The  court  refused  jurisdic- 
tion over  the  claim  on  the  above  principle,  even  though  the  Mt.  Hope 
had  actually  never  reached  France,  having  been  captured  by  the 
British  from  the  French  before  arrival. 

"The  Athol,  i  W.  Robinson,  382  (1842). 

12  For  a  discussion  of  the  British  Practice  of  the  Crown  submitting 
to  jurisdiction  through  the  appearance  of  the  Lords  of  the  Admiralty, 
see  below,  page  69. 

13  The  Resolute,  33  L.  T.,  80. 
i^ioL.  T.  (N.  S.),  726. 

15  The  Lord  Nelson,  Edw.  Adm.,  79. 


IMMUNITY  OF  PUBLIC  VESSELS  AND  GOODS  63 

Transports  are  universally  regarded  by  the  courts  as  parts 
of  the  naval  forces  of  the  Government  and,  although  they  are 
not  necessarily  armed  ships  of  war,  the  same  immunity  is  to 
be  accorded  them  as  to  vessels  of  war  and  upon  the  same 
reasoning.  Two  recent  cases  in  the  American  courts  will 
show  to  what  extent  the  above  ruling  is  adhered  to  in  the 
United  States. 

The  Pampa.™ — A  vessel  regularly  enrolled  as  a  ship  of  the 
Argentine  Navy  as  a  transport,  and  flying  the  naval  ensign  of 
that  republic,  whose  officers  and  crew  were  officers  and  en- 
listed men  of  such  Navy,  was  libeled  in  the  District  Court 
for  the  Eastern  District  of  New  York  for  damages  for  a 
collision.  The  court  dismissed  the  libel  on  the  ground  that 
public  ships  of  a  sovereign,  whether  armed  or  not,  when  they 
are  in  the  actual  possession,  custody  and  control  of  the  nation 
itself,  are  not  answerable  legally  (in  the  absence  of  consent) 
in  her  own  or  other  courts.  This  decision  was  made  even 
though  the  Pampa,  at  the  time  of  the  collision,  was  carrying 
a  cargo  of  general  merchandise  belonging  to  private  persons. 
It  appeared  that  the  cargo  was  carried  for  the  benefit  of  the 
Argentine  Republic,  and  as  an  incident  to  her  voyage  to  this 
country  to  obtain  coal  and  munitions  for  the  use  of  the 
government. 

The  Maipo.17 — A  naval  transport  owned  by  the  govern- 
ment of  Chile,  and  in  its  possession,  through  a  naval  captain 
and  crew  was  chartered  to  a  private  individual  to  carry  a 
commercial  cargo  of  hides.  The  hides,  which  were  owned 
by  a  New  Jersey  corporation,  were  damaged  in  transit.  It 
was  sought  to  have  the  ship  seized  for  this  damage  by  an 
action  brought  in  the  District  Court  for  the  Southern  District 
of  New  York.  The  Chilean  Embassy  filed  a  suggestion  set- 
ting forth  the  national  character  of  the  ship  and  prayed 
release  of  the  ship.  The  court  released  the  ship,  stating  defi- 
nitely that  a  sovereign  does  not  lose  his  immunity  and  privi- 
leges by  laying  down  his  character  as  a  sovereign  and  entering 

16  245  Fed.  Rep.,  137,  Aug.  29,  1917. 

17  252  Fed.  Rep.,  627 ;  also  cf .  259  Fed.  Rep.,  367  (July  8,  1918) . 


64          RECENT  PROBLEMS  IN  ADMIRALTY  JURISDICTION 

into  trading  transactions.  The  cases  which  have  developed 
this  doctrine  are  considered  in  a  subsequent  section.18  This 
is  the  only  recent  instance  in  which  purely  private  commercial 
cargoes  were  carried,  and  business  conducted,  by  a  ship  be- 
longing to  the  public  naval  forces,  and  although  the  doctrine 
here  involved  is  somewhat  out  of  its  logical  place,  the  case  is 
here  remarked  upon  to  further  impress  the  former  principle 
(subject  to  the  exceptions  noted)  that  a  public  naval  vessel, 
in  the  actual  possession  of,  and  under  the  control  of  the 
government,  is,  together  with  its  cargo,  exempt  from  local 
process.19 

This  excellent  statement  by  Judge  Mayer  is  found  in  the 
Maipo  Decision,  concerning  the  result  and  effect  of  holding 
such  a  vessel  immune : 20 

It  is  said  great  Toss  and  inconvenience  may  be  visited  upon  the 
many  kinds  of  people  who  deal  with  a  vessel  thus  immune,  and  that 
American  citizens  will  be  put  to  the  trouble  and  expense  for  claims, 
large  and  small,  of  seeking  their  relief  in  far-distant  foreign  juris- 
dictions. The  answer  is  that,  when  one  knows  with  whom  he  is  deal- 
ing and  the  law  is  applicable,  he  must  arrange  accordingly.  This 
may  be  difficult,  but  in  these  days  of  rapid  changes,  accommodation 
to  new  conditions  is  accomplished  effectively  and  expeditiously. 

While  diplomatic  questions  are  beyond  the  court's  province  yet 
practical  considerations  of  comity  are  not  to  be  lost  sight  of.  The 
American  Government  has  placed  naval  officers  and  men  on  ships  to 
safeguard  them,  and  these  ships  are  engaged  in  commercial  enter- 
prises which  are  of  benefit  to  the  people  at  large.  And  as  time  is  so 
important  a  factor,  a  detention  by  process  of  a  court  might  cause 
incalculable  damage.  Whatever  loss  or  inconvenience,  if  not  safe- 
guarded against,  might  thus  result  either  to  our  people  when  dealing 
with  foreign  ships  or  to  foreign  people  when  dealing  with  us,  is  the 
price  which  the  individual  is  paying  for  the  ultimate  benefit  of  his 
country. 

The  Extension  of  Immunity  to  Other  Public  Vessels 

Instruments  of  Sovereignty.  Light-ships. — Three  light- 
boats  were  built  in  the  State  of  Massachusetts  for  the  United 
States.  They  had  been  accepted  and  paid  for  by  the  govern- 

18  See  below,  page  76. 

19  In  the  second  Maipo  case,  259  Fed.,  367  ( 1919) ,  the  attempt  was 
made  to  arrest  the  vessel  under  a  maritime  lien  arising  out  of  tort. 
But  the  same  rule  was  applied  and  the  ship  was  a  second  time  ex- 
empted, on  the  grounds  that  the  maritime  lien  was  to  be  treated  the 
same  whether  it  arose  out  of  contract  or  tort. 

20  252  Fed.  Rep.,  630. 


IMMUNITY  OF  PUBLIC  VESSELS  AND  GOODS  65 

ment  and  title  thereto  had  vested  in  the  United  States,  by  the 
taking  possession  of  them  and  fitting  them  for  use  with 
lanterns,  etc.  Subsequently  an  action  in  rem  was  brought 
for  labor  and  materials  furnished  in  the  construction  of  the 
ships  by  certain  subcontractors,21  but  prior  to  their  actual  use 
as  light-ships  by  the  government.  Immunity  from  arrest 
was  established  by  the  State  Court  in  this  case,  not  because 
the  ships  were  instruments  of  war,  but  because  they  were 
instruments  of  sovereignty.  Nor  was  the  exemption  de- 
pendent upon  the  extent  or  manner  of  their  actual  use  at  any 
particular  time,  but  on  the  purpose  to  which  they  were 
devoted. 

The  importance  of  this  well-considered  decision  by  the 
Massachusetts  Court  can  not  be  overlooked,  for  from  this 
case,  as  a  precedent,  both  English  and  American  Courts  have 
adopted  broader  and  more  liberal  doctrines  of  exemption  and 
the  phrase  "instrument  of  sovereignty"  is  now  applied  by 
the  Admiralty  Courts  to  cover  many  classes  of  vessels  en- 
gaged in  public  business.  There  are,  undoubtedly,  certain 
kinds  of  ships  devoted  to  governmental  and  public  uses 
which,  on  grounds  of  policy,  should  be  exempted  from  de- 
tention and  the  resulting  loss  of  time,  which,  prior  to  this 
decision,  could  with  difficulty  have  claimed  exemption  on  a 
well-recognized  legal  basis,  if  at  all. 

Before  tracing  the  extension  of  this  doctrine  of  immunity 
in  subsequent  cases,  a  second  and  most  important  rule  of  law, 
as  applied  in  admiralty,  must  be  here  announced,  as  it  is  in 
this  same  case  of  Briggs  vs.  Light-boats  that  the  rule  finds 
one  of  its  most  brilliant  expositions  in  American  law. 

The  Nature  of  the  Process  in  Rem. — A  lien  may  attach 
but  it  is  not  enforceable  by  a  process  in  rem  against  the 
vessels  and  property  in  the  possession  and  control  of  the 
sovereign  power. 

As  was  pointed  out  in  the  Briggs  Case  the  question  was 
not  as  to  the  validity  of  the  petitioner's  title  but  as  to  the 

21  Briggs  &  another  vs.  Light-boats,  n  Allen  (Mass.),  157  (1865). 
This  case  offers  an  exhaustive  inquiry  into  all  the  previous  cases  in 
English  and  American  law  bearing  upon  the  point  at  issue. 


66          RECENT  PROBLEMS  IN  ADMIRALTY  JURISDICTION 

mode  of  asserting  it ;  not  of  right,  but  of  remedy.  The  sov- 
ereign power  had  not  submitted  itself  to  the  jurisdiction  of 
the  court  by  bringing  a  civil  action  to  enforce  its  own  rights 
to  property  in  the  possession  of  an  individual.  The  United 
States  had  only  appeared  specially  to  the  jurisdiction.  In 
the  absence  of  permission  it  could  not  be  sued.  Yet  the  con- 
tention was  advanced  that  by  bringing  the  process  in  rem  the 
suit  was  solely  against  the  ship  itself  and  that  the  state  was 
not  thereby  in  any  way  made  party  to  a  suit.  The  ship  alone 
was  affected. 

The  court  denied  that  a  suit  in  rem  against  the  ship  was 
one  which  did  not  affect  the  government.  The  effect  of  the 
process  was  to  attach  and  hold  under  power  of  sale  the  whole 
property,  including  the  title  of  the  United  States,  and  that  in 
this  way  the  United  States  would  in  effect  be  impleaded  and 
summoned  in  as  a  defendant.  The  process  in  rem  "  does  not 
wait  for  final  adjucation  of  the  rights  of  the  parties,  before 
it  takes  the  property  out  of  the  hands  of  its  owner  and 
possessor ;  but  assumes  the  custody  at  the  very  first  stage  of 
the  proceedings.  And  thus,  if  these  petitions  can  be  sus- 
tained, any  attorney  of  a  state  court  may  cause  a  public  vessel 
of  the  United  States  to  be  taken  out  of  their  possession  with- 
out any  previous  judicial  investigation  of  the  petitioner's 
claim,  and  at  a  moment  when  the  exigencies  of  the  public 
service,  known  only  to  the  executive  department,  and  which 
may  not  safely  be  disclosed,  require  its  immediate  dispatch  to 
a  distant  station."  Such  would  be  the  effect  of  upholding 
the  petitioner's  claim.  There  had  been,  previous  to  this  case, 
an  opinion  of  Justice  Story's  in  1838  in  the  case  of  United 
States  vs.  Wilder,22  in  which  apparently  an  attempt  was  made 
in  several  obita  dicta  of  his  to  draw  a  distinction  between  the 
prohibition  of  suits  in  personam  against  the  government  and 
suits  in  rem.  He  says  on  page  312 : 

It  is  said,  that,  in  cases  where  the  United  States  are  a  party,  no 
remedy  by  suit  lies  against  them  for  contribution;  and  hence  the 
conclusion  is  deducted,  that  there  can  be  no  remedy  in  rem.  Now, 
I  confess,  that  I  should  reason  altogether  from  the  same  premises 

22  3  Sumner,  308  (C  C.  of  U.  S.,  ist  C). 


IMMUNITY  OF  PUBLIC  VESSELS  AND  GOODS  67 

to  the  opposite  conclusion.  The  very  circumstance,  that  no  suit 
would  lie  against  the  United  States  in  its  sovereign  capacity,  would 
seem  to  furnish  the  strongest  ground,  why  the  remedy  in  rem  should 
be  held  to  exist. 

In  other  words,  he  holds  that  the  action  can  be  brought  and 
the  amount  to  be  paid  ascertained  by  the  Court.  But  beyond 
that  the  Court  could  not  go  in  enforcing  the  award  against  the 
United  States.  The  judgment  would  be  unenforceable,  but 
one  which  the  Government  was  competent  to  discharge  at  its 
own  volition. 

Certainly  he  overlooks  the  fact  that  the  Court,  by  ordering 
the  process  in  rem  at  the  very  inception  of  the  action,  actually 
deprives  the  United  States  of  the  use  of  its  property.  Alto- 
gether the  eminent  Justice  here  got  on  very  dangerous 
ground,  but  the  law  was  saved  from  the  possible  unfortunate 
result  of  such  an  opinion  by  the  fact  that  in  this  particular 
Wilder  Case  the  United  States  had  on  its  own  initiative  come 
into  Court,  as  it  itself  had  brought  the  suit  in  trover  to  re- 
cover certain  goods. 

This  obiter  of  Justice  Story's  has  been  attacked  in  the 
British  Courts,  particularly  by  Lord  Justice  Brett  in  the  case 
of  the  Parlement  Beige.23  In  discussing  the  nature  of  the 
process  in  rem  he  says : 

But  we  cannot  allow  it  to  be  supposed  that  in  our  opinion  the 
owner  of  the  property  is  not  indirectly  impl'eaded.  The  course  of 
proceeding,  undoubtedly,  is  first  to  seize  the  property.  It  is  not 
necessary,  in  order  to  enable  the  court  to  proceed  further,  that  the 
owner  should  be  personally  served  with  any  process. 

The  seizure  is  accomplished  by  a  public  formality  and 
notice.  The  owner  has  a  right  to  appear  and  show  cause  and 
this  right  cannot  be  denied  him.  If  he  is  not  given  the  op- 
portunity to  protect  his  property  from  a  final  decree  by  the 
Court,  the  judgment  in  rem  would  be  contrary  to  natural 
justice.  The  owner  is  thus,  at  least,  indirectly  impleaded  to 
answer  to,  that  is  to  say  to  be  affected  by,  the  judgment  of 
the  Court.  It  cannot  be  assumed  that  a  Court  which  seizes 
and  sells  a  man's  property  does  not  subject  that  person  to  its 
jurisdiction. 

23  Law  R.,  P.  D.,  197  (1880),  p.  215. 


68  RECENT  PROBLEMS  IN  ADMIRALTY  JURISDICTION 

To  implead  an  independent  sovereign  in  such  a  way  is  to  call 
upon  him  to  sacrifice  either  his  property  or  his  independence.  To 
place  him  in  that  position  is  a  breach  of  the  principle  upon  which 
his  immunity  from  jurisdiction  rests.  We  think  that  he  cannot  be 
so  indirectly  impleaded,  any  more  than  he  could  be  directly  im- 
pleaded.24 

And  in  1868  the  Supreme  Court  in  the  Siren25  held, 
through  Justice  Field,  that  a  proceeding  in  rem  would  not  lie 
against  a  vessel  which  was  the  property  of  the  United  States. 

In  such  a  case  the  claim  exists  equally  as  if  the  vessel  belonged 
to  a  private  citizen,  but  for  reasons  of  public  policy,  already  stated, 
cannot  be  enforced  by  direct  proceedings  against  the  vessel.  It 
stands,  in  that  respect,  like  a  claim  against  the  government,  incapable 
of  enforcement  without  its  consent,  and  unavailable  for  any  pur- 
pose. 

The  inability  of  such  claimants  in  admiralty  to  obtain 
speedy  payment  and  justice  against  public  vessels  of  the 
United  States  was,  prior  to  the  act  of  1920,  one  of  the  un- 
fortunate weaknesses  of  our  American  system.  The  method 
of  procedure  adopted  in  England  for  the  enforcement  of  such 
claims  was  far  more  satisfactory.  And  it  was  probably  due 
to  this  very  weakness  of  our  law  that  inferior  courts  through- 
out the  country,  seeing  the  necessity  of  some  rapid  justice  in 
particular  cases,  have  resorted  to  many  forms  of  expedients 
and  reasoning  to  escape  the  apparent  impleading  of  the 
United  States  in  invitum.258 

2*5  P.  D.,  219  (1880). 

25  7  Wall.,  152  at  155. 

2sa  Even  the  Supreme  Court  itself  has  at  times  gone  far  to  argue 
around  the  prohibition  of  impleading  the  United  States,  as  is  ex- 
ampled,  for  instance  by  the  case  of  U.  S.  vs.  Lee,  106  U.  S.,  196. 
There,  the  Court  arguing  from  a  quotation  of  Marshall  in  U.  S.  vs. 
Peters,  5  Cranch,  115,  that  "it  certainly  can  never  be  alleged  that  a 
mere  suggestion  of  title  in  a  State  to  property  in  possession  of  an 
individual  must  arrest  the  proceedings  of  the  court,  and  prevent 
their  looking  into  the  suggestion  and  examining  the  validity  of  the 
title," — held  that  the  doctrine  of  the  non-suability  of  the  United 
States  has  no  application  to  officers  and  agents  of  the  United  States, 
who,  when  as  such,  holding  possession  of  property  for  public  uses 
are  sued  by  a  person  claiming  to  be  the  owner  thereof  or  entitled 
thereto.  But  the  lawfulness  of  that  possession  and  the  right  or  title 
of  the  United  States  to  the  property  may  be  the  subject  matter 
of  inquiry  and  judged  accordingly.  The  defendants  were  sued  indi- 
vidually as  trespassers  and  they  set  up  an  authority  as  officers  of  the 


IMMUNITY  OF   PUBLIC  VESSELS  AND  GOODS  69 

The  Act  of  March  9,  1920,  has  now  greatly  relieved  the 
situation  by  permitting  suits  in  personam  against  the  United 
States  in  Admiralty  in  causes  arising  out  of  the  operation  and 
management  of  merchant  ships  by  the  United  States  through 
the  Emergency  Fleet  Corporation. 

The  English  Method  of  Impleading  the  Sovereign  in  Ad- 
miralty.— In  England,  when  there  exists  a  claim  against  a 
Public  Vessel  owned  by  the  Crown,  the  present  practice  is  to 
file  a  libel  in  rem  upon  which  the  court  directs  the  registrar 
to  write  to  the  Lords  of  the  Admiralty,  requesting  an  appear- 
ance on  behalf  of  the  Crown.  These  Lords  represent  the 
Crown,  and  upon  such  a  request  usually  appear,  and  this  is 
equivalent  to  a  waiver  by  the  Crown  of  its  privileges  as  sov- 
ereign and  the  subsequent  proceedings  are  conducted  as  in 
other  cases.  However,  no  warrant  issues  in  these  cases  for 
the  arrest  of  the  vessels  of  the  Crown  and  for  reasons  of 
public  policy  they  are  not  taken  into  custody;  and  further- 
more it  is  to  be  presumed  that  the  government  will  at  once 
satisfy  a  decree  rendered  by  its  own  tribunals  in  a  case  in 
which  it  has  voluntarily  appeared.26 

However,  no  power  resides  in  an  English  Admiralty  Court 
to  issue  a  monition  to  the  Lords  of  the  Admiralty  to  appear 
in  a  suit  of  this  sort.27  The  policy  of  the  Government  is  to 
submit  itself  to  the  jurisdiction  of  its  own  courts  on  applica- 
tion for  a  redress  of  grievances.  It  is  believed  that  this  Brit- 
ish practice  has  at  times  affected  the  American  and  has  been 
the  origin  of  the  not  infrequent  contention  that  public  ships 
can  be  subjected  to  maritime  liens,  without  the  express  con- 
sent of  the  Government. 

The  Immunity  of  Vessels  Owned  and  Operated  by  Quasi- 
sovereignties.  Municipal  Corporations.  —  Immunity  from 

United  States  which  the  court  held  to  be  unlawful.  But  any  suit 
against  officers  of  a  state  in  which  the  judgment  or  decree  will  be 
conclusive  of  the  rights  of  the  state  will  be  regarded  as  a  suit  against 
the  state,  as  in  Stanley  vs.  Schwalby,  162  U.  S.,  255 ;  cf .  Willoughby 
on  the  Constitution,  p.  noi. 

26  Cf.  Siren,  7  Wall.,  152  at  155;  also  The  Fidelity,  16  Blatchford, 
569  at  574.    . 

27  The  Athol,  I  W.  Robinson,  382. 


7O          RECENT  PROBLEMS  IN  ADMIRALTY  JURISDICTION 

seizure  in  a  suit  in  rem  was  extended  by  Chief  Justice  Waite 
in  the  Fidelity28  to  a  steam-tug,  the  property  of  the  City  of 
New  York.  This  tug  was  used  exclusively  by  an  executive 
department  of  that  city,  and  while  actually  engaged  in  public 
service  under  the  orders  of  that  department  caused  damage  to 
another  vessel  for  which  a  libel  was  instituted. 

On  the  basis  of  Klein  vs.  New  Orleans,29  it  was  held  that 
municipal  corporations  were  the  local  agents  of  the  Govern- 
ment enacting  them  and  that  their  powers  were  such  as  be- 
longed to  sovereignty.  And  therefore  public  property  of 
such  corporations  when  devoted  to  public  uses  is  exempt 
from  seizure  and  sale  under  execution.30  This  is  apparently 
the  line  of  argument  advanced,  but  it  is  certainly  very  doubt- 
ful whether  the  rule  of  the  courts  of  common  law  which 
exempts  from  seizure  the  property  of  a  municipality  devoted 
to  its  municipal  uses  should  obtain  in  a  Court  of  Admiralty 
of  the  United  States.  It  is  admitted  that  the  Admiralty 
Court  would  have  jurisdiction  of  a  suit  in  personam  against 
the  municipality  itself.  It  is  therefore  submitted  that  the 
statements  found  in  this  case,  namely,  "the  exemption  of 
public  vessels  from  suits  in  Admiralty  arises  not  out  of  a 
want  of  power  to  sue  the  public  owner,  but  out  of  a  want  of 
liability  on  the  part  of  the  vessel,"  and  "a  public  vessel  is 
part  of  the  sovereignty  to  which  she  belongs,  and  her  liability 
is  merged  in  that  of  the  sovereign,"  are  incorrect  and  are 
overruled  by  two  Supreme  Court  decisions.  In  Workman 
vs.  New  York,31  page  570,  it  is  said  that  "  in  maritime  law  the 

28  16  Blatchford,  569  (1879). 

2<>99U.  S.f  149- 

M  Brinkerhoff  vs.  The  Bd.  of  Education,  2  Daly,  443. 

31 179  U.  S.,  552  (1900).  In  this  case  the  City  of  New  York  was 
held  liable  in  an  action  in  personam  for  damages  caused  by  a  fire 
boat  of  New  York  City  to  a  British  Ship,  while  fighting  a  nearby 
fire.  The  court  refused  to  say  that  the  city  was  exempt  just  because 
its  property  causing  the  damage  might  be  exempt  from  an  action  in 
rem  on  the  ground  that  it  was  an  instrumentality  in  the  performance 
of  municipal'  functions.  It  was  not  admitted  that  the  corporation 
should  be  treated  as  a  sovereign  by  the  maritime  law.  The  immunity 
of  a  sovereign  was  held  to  be  based  on  the  hypothesis  of  the  want 
of  a  person  or  property  before  the  court  over  whom  jurisdiction  can 
be  exercised  and  the  inability  to  give  redress.  The  court  did  not 
lack  this  power  over  municipal  corporations. 


IMMUNITY  OF  PUBLIC  VESSELS  AND  GOODS  71 

public  nature  of  the  service  upon  which  a  vessel  is  engaged 
at  the  time  of  the  commission  of  a  maritime  tort  affords  no 
immunity  from  liability  in  a  court  of  admiralty,  where  the 
court  has  jurisdiction."  And  in  the  John  G.  Stevens : 32 
"  The  foundation  of  the  rule  that  collision  gives  to  the  party 
injured  a  jus  in  re  in  the  offending  ship  is  the  principle  of 
the  maritime  law  that  the  ship,  by  whomsoever  owned  or 
navigated,  is  considered  as  herself  the  wrongdoer,  liable  for 
the  tort,  and  subject  to  a  maritime  lien  for  the  damages."  A 
lien  therefore  attaches,  the  ship  is  made  liable,  and  this  lia- 
bility can  be  enforced  when  the  court  has  jurisdiction. 

There  remains  therefore  the  single  question  as  to  whether 
a  Federal  Admiralty  Court  has  jurisdiction  over  a  vessel 
owned  by  a  municipal  corporation  or  by  one  of  the  United 
States,  which  is  at  the  time  of  the  suit  devoted  to  public  uses. 

A  State  of  the  United  States. — It  is  believed  by  the  writer 
that  the  better  law  is  to  be  found  in  the  case  of  The  Oyster 
Police  Steamers  of  Maryland,33  where  the  District  Court  of 
Maryland  exercised  jurisdiction  over  and  ordered  the  arrest 
and  seizure  of  three  steam  vessels  owned  and  operated  by  the 
State  of  Maryland,  and  used  solely  as  instruments  of  govern- 
ment in  the  enforcement  of  the  state  fishery  laws.  True  it 
is  that  this  libel  was  instituted  for  a  failure  to  comply  with 
the  United  States  inspection  regulations,  a  "law  enacted  by 
a  sovereign  power  having  express  power  granted  to  it  to 
make  the  law."  But  this  does  not  in  any  way  alter  the  fact 
that  the  District  Court  recognized  its  power  to  exercise  juris- 
diction over  instruments  of  state  sovereignty. 

It  is,  therefore,  believed  that  the  correct  rule  of  admiralty 
and  maritime  law  is  that  immunity  from  process  is  only  to  be 
extended  to  public  vessels  owned  by,  and  in  possession  of, 
and  destined  to  a  public  use,  by  the  sovereign  powers,  in  the 
international  conception,  and  not  quasi-sovereignties. 

Political  Subdivision  of  Foreign  Governments. — This  rule 
has  certainly  been  followed,  as  far  as  foreign  quasi-sovereign 

32  170  U.  S.,  120  (1897)  ;  cf.  also  The  Barnstable,  181  U.  S.,  464. 
333i  Fed.  Rep.,  763  (1887). 


72  RECENT  PROBLEMS  IN  ADMIRALTY  JURISDICTION 

powers  are  concerned,  in  the  Supreme  Court  of  New  Jersey 
in  what  is  known  as  the  Yucatan  Hemp  Case.34  The  State 
of  Yucatan  in  Mexico  created  a  corporation  to  assist  in  carry- 
ing out  its  policies  with  reference  to  the  growth  and  sale  of 
sisal  hemp.  This  corporation  was  sued  in  a  New  Jersey 
court  and  claimed  immunity  under  the  theory  that  it  was  a 
branch  of  the  sovereignty  of  a  foreign  state  and  that  its  work 
contributed  to  the  prosperity  of  Mexico.  But  the  court  held 
that  the  State  of  Yucatan  of  the  republic  of  Mexico  was  not 
such  a  sovereign  state  as  to  be  immune  from  the  jurisdiction 
of  courts  of  another  state,  since  Yucatan  was  only  a  member 
of  the  federated  state  of  Mexico,  and,  in  external  relations, 
the  United  States  of  Mexico  only  were  sovereign  in  the  view 
of  international  law.  Furthermore  the  court  said  that  none 
of  the  reasons  given  for  the  immunity  of  sovereigns  were 
applicable  to  corporations,  whether  governmental  agencies 
or  not. 

In  this  case  it  was  also  clearly  shown  by  a  communication 
from  the  State  Department  that  the  policy  of  the  United 
States  Government  was  that  political  subdivisions  of  a  for- 
eign government  engaged  in  ordinary  commercial  transac- 
tions must  be  regarded  as  subjecting  themselves  to  obliga- 
tions arising  from  commercial  transactions  if  they  are  also  to 
reap  the  benefits  and  enjoy  the  rights  of  trade. 

Government  Revenue  Cutters 

Two  steam  cutters  were  constructed  in  New  York  for  the 
public  service  of  Mexico  under  contract  with  a  certain  Obre- 
gon,  claiming  to  be  an  agent  of  the  Mexican  Government. 
These  vessels  were  completed  and  delivered  to  the  agent  in 
New  York,  by  whom  they  were  turned  over  to  two  American 
captains  to  be  taken  to  Vera  Cruz  and  there  delivered  to  the 
Mexican  authorities.  The  following  day,  while  still  at  the 
wharf,  they  were  salvaged  from  fire.  A  libel  for  salvage 
services  was  begun.35  The  defence  of  no  jurisdiction  was 

34  Molina  vs.  Comision  Reguladora,  Mercado  de  Henequen,   103 
Atl.  Rep.,  397- 

35  Long  vs.  The  Tampico,  16  Fed.,  491  (1883). 


IMMUNITY  OF  PUBLIC  VESSELS  AND  GOODS  73 

set  up,  but  the  court  held  that  since  the  actual  authority  of 
Obregon  did  not  appear,  nor  were  his  relations  to  the  Mexi- 
can Government  clear,  the  libel  for  salvage  would  be  sus- 
tained against  the  vessels.  There  was  no  evidence  that  the 
property  in  the  vessels  had  passed  to  the  Mexican  Govern- 
ment, but  regardless  of  this,  whether  it  had  passed  or  not, 
the  ships  were  still  liable  because  they  were  not  at  the  time 
of  the  libel  in  the  public  service  of  that  Government,  nor 
were  they  in  the  possession  of  any  officer  of  that  government. 

Thus  the  rule  is  clearly  asserted  that, — 

Possession  by  the  Government  Must  be  Actual. — When 
the  possession  of  the  vessel  has  been  delivered  to  the  master 
or  captain  as  bailee,  for  delivery,  then  the  immunity  ceases.86 

Public  Vessels  of  Sovereign  Engaged  in  Business  of  Com- 
mercial Character.  English  Cases. — The  leading  English 
case  involving  the  immunity  of  Public  Vessels  engaged  in 
business  of  commercial  character  or,  as  has  been  said,  in  the 
common  business  of  commerce,  is  that  of  the  Parlement 
Beige,37  decided  in  1880. 

The  Parlement  Beige  was  an  unarmed  packet  belonging  to 
the  sovereign  of  Belgium.  It  was  in  the  possession  and  con- 
trol of  officers  commissioned  by  him  and  employed  in  carry- 
ing mails  between  Ostend  and  Dover.  On  these  trips  the 
vessel  also  carried  merchandise  and  passengers  for  hire.  A 
suit  in  rem  was  instituted  in  the  British  Court  to  recover 
redress  for  damages  resulting  from  a  collision  and  the  de- 
fense of  immunity  was  set  up  on  the  one  hand  and  the 
libellants,  among  other  reasons,  denied  the  exemption  on  the 
ground  that  this  immunity  was  lost  by  the  fact  that  the  ship 
was  engaging  in  commercial  enterprise. 

The  Belgian  Government  declared,  through  the  Attorney 
General,  that  the  packet  was  in  the  possession  of  the  sover- 
eign and  that  it  was  a  public  vessel  of  the  state.  The  correct- 
ness of  this  declaration  the  Court  refused  to  inquire  into 
since  "to  submit  to  such  an  inquiry  before  the  Court  is  to 
submit  to  its  jurisdiction. " 

36  See  below. 

37  Law  R.,  5  P.  D.,  197, 


74          RECENT  PROBLEMS  IN  ADMIRALTY  JURISDICTION 

No  action  in  rem  against  the  ship  was  allowed  by  the 
Court. 

The  public  property  of  every  state,  being  destined  to  public  uses, 
cannot  with  reason  be  submitted  to  the  jurisdiction  of  the  courts  of 
such  State,  because  such  jurisdiction,  if  exercised,  must  divert  the 
public  property  from  its  destined  public  uses ;  and  that  by  interna- 
tional comity,  which  acknowledges  the  equality  of  states,  if  such  im- 
munity, grounded  on  such  reason,  exist  in  each  state  with  regard 
to  its  own  public  property,  the  same  immunity  must  be  granted  by 
each  state  to  similar  property  of  all  the  other  states.  The  dignity 
and  independence  of  each  state  require  this  reciprocity.38 

As  to  the  loss  of  immunity  by  reason  of  the  ship  having 
been  used  for  trading  purposes,  although  the  carrying  of 
passengers  and  merchandise  was  subordinate  to  the  duty  of 
carrying  the  mails,  it  was  held  that  any  doubt  as  to  whether 
the  ship  was  used  for  national  purposes  would  be  covered  by 
the  same  rule ;  that  the  declaration  of  the  sovereign  authority 
could  not  be  enquired  into. 

The  only  previous  case  which  in  any  way  argued  that  the 
immunity  of  sovereignty  was  lost  by  the  undertaking  of  com- 
mercial enterprise  by  a  public  vessel  was  that  of  the  Char- 
kieh39  in  which  Sir  Robert  Phillimore  held  that  a  vessel 
owned  by  the  Khedive  of  Egypt,  though  flying  the  flag  of 
the  Turkish  navy,  was  not  free  from  a  process  in  rem,  when 
she  had  come  with  cargo  to  England  and  had  been  entered  at 
the  customs  like  an  ordinary  merchant  vessel.  He  said : 

That  if  ever  there  was  a  case  in  which  the  alleged  sovereign  (to 
use  the  language  of  Bynkershoek)  was  "  strenue  rnercatorem  agens," 
or  in  which,  as  Lord  Stowell  says,  he  ought  to  "  traffick  on  the  com- 
mon principles  that  other  trades  traffick"  it  is  the  present  case,  and 
if  ever  a  privileged  person  can  waive  his  privilege  by  his  conduct,  the 
privilege  has  been  waived  in  this  case.  It  was  not  denied,  and  coul'd 
not  be  denied,  after  the  evidence  that  the  vessel  was  employed  for 
the  ordinary  purpose  of  trading.  She  belongs  to  what  may  be  called 
a  commercial  fleet.  I  do  not  stop  to  consider  the  point  of  her  carry- 
ing the  mails,  for  that  was  practically  abandoned  by  counsel.  She 
enters  an  English  port  and  is  treated  in  every  material  respect  by  the 
authorities  as  an  ordinary  merchantman,  with  the  full  consent  of  her 
master;  and  at  the  time  of  the  collision  she  is  chartered  to  a  British 
subject,  and  advertised  as  an  ordinary  commercial  vessel.  No  prin- 
ciple of  international  law,  and  no  decided  case,  and  no  dictum  of 
jurists  of  which  I  am  aware  has  gone  so  far  as  to  authorize  a  sov- 
ereign prince  to  assume  the  character  of  a  trader,  when  it  is  for  his 

38  Law  R.,  5  P.  D.,  210. 
89  Law  Rep.,  4  A  &  E,  59. 


IMMUNITY  OF  PUBLIC  VESSELS  AND  GOODS  75 

benefit;  and  when  he  incurs  an  obligation  to  a  private  subject  to 
throw  off,  if  I  may  speak  so,  his  disguise,  and  appear  as  a  sovereign, 
claiming  for  his  own  benefit,  and  to  the  injury  of  a  private  person, 
for  the  first  time,  all  the  attributes  of  his  character;  while  it  would 
be  easy  to  accumulate  authorities  for  the  contrary  position. 

Notwithstanding  this  expression  of  opinion  in  the  Charkieh 
Case,  the  decision  there  undoubtedly  turned  on  the  fact  that 
the  Khedive  was  not  an  independent  sovereign,  and  hence  his 
vessel  was  not  exempted.  This  is  the  interpretation  placed 
on  the  case  by  all  subsequent  English  decisions,  and  indeed 
it  is  now  generally  admitted  that  the  above  reasoning  of  the 
well-known  Justice  has  been  overruled  by  the  Parlement 
Beige.40 

In  Young  vs.  Scotia41  the  privilege  from  arrest  was  held 
to  extend  to  a  ferry  boat,  as  being  the  property  of  the  crown, 
although  it  was  used  for  trading  purposes  as  a  part  of  the 
plant  of  a  railway  company  in  Canada. 

This  extension  of  the  doctrine  of  immunity  was  applied  by 
the  English  Courts  in  1906  to  a  ship42  which  was  the  property 
of  a  foreign  sovereign  state,  Roumania,  and  which  was 
destined  to  public  use,  being  owned  in  connection  with  the 
state  railways  of  Roumania  and  engaged  in  the  carriage  of 
mails,  passengers  and  cargo.  An  action  in  rem  arising  out 
of  collision  was  brought.  An  application  of  the  foreign  gov- 
ernment was  made  to  the  British  foreign  office  and  this  office 
produced  in  Court  a  certificate  of  the  public  character  of  the 
vessel  in  question.  All  proceedings  were  stayed  and  no 
waiver  of  the  privilege  of  immunity  was  assumed,  although 
during  the  temporary  presence  of  the  vessel  in  British  juris- 
diction the  agents  of  the  government  of  Roumania  under  a 
misapprehension,  and  in  order  to  procure  her  release,  had 
given  an  undertaking  to  put  in  bail  and  had  entered  an  abso- 
lute appearance.43  The  case  was  declared  to  be  covered  en- 
tirely by  the  decision  in  the  Parlement  Beige. 

40  Cf.  Mighell  vs.  Sultan  of  Johore,  i  Q.  B.  (1894),  154  and  158. 

41 1903,  A.  C,  501. 

12  The  Jassy,  1906,  P.  D.  270. 

43  Cf.  below,  page  93. 


76  RECENT   PROBLEMS   IN  ADMIRALTY   JURISDICTION 

American  Cases. — It  is  to  be  observed  that  the  same  rule 
of  immunity  has  been  applied  by  the  American  Courts  of 
Admiralty  in  the  two  recent  cases  of  the  Pampa44  and  the 
Maipo.45  Both  ships  were  enrolled  as  naval  transports,  the 
former  in  the  Argentine  navy  and  the  latter  in  the  Chilean. 
They  were  manned  by  naval  captains  and  crews  but  each  was 
carrying  a  commercial  cargo  belonging  to  private  persons. 
It  must  be  admitted,  however,  that  the  national  character  of 
the  vessels  themselves  as  such  was  the  reason  for  their  ex- 
emption. They  were,  in  type,  certainly  not  merchant  vessels. 
As  far  as  is  known,  no  such  case  as  the  Parlement  Beige  has 
arisen  in  American  Courts  of  Admiralty.  It  is  very  possible 
that  should  a  case  arise  under  corresponding  circumstances 
the  English  doctrine  would  be  followed  by  our  courts.  How- 
ever, it  cannot  be  denied  that  some  very  strong  opinions  to 
the  contrary  have  been  expressed  in  America.  Almost  all  of 
these  can  be  traced  to  the  opinion  of  Chief  Justice  Marshall 
in  the  Bank  of  United  States  vs.  Planter's  Bank  of  Georgia.46 
He  there  said : 

It  is,  we  think,  a  sound  principle  that  when  a  government  becomes 
a  partner  in  any  trading  company,  it  divests  itsel'f,  so  far  as  concerns 
the  transactions  of  that  company,  of  its  sovereign  character,  and 
takes  that  of  a  private  citizen.  Instead  of  communicating  to  the 
company  its  privileges  and  its  prerogatives,  it  descends  to  a  level 
with  those  with  whom  it  associates  itself,  and  takes  the  character 
which  belongs  to  its  associates,  and  to  the  business  which  is  to  be 
transacted.  ...  So  with  respect  to  the  present  bank.  Suits  brought 
by  or  against  it  are  not  understood  to  be  brought  by  or  against  the 
United  States.  The  government,  by  becoming  a  corporator,  lays 
down  its  sovereignty  so  far  as  respects  the  transactions  of  the  cor- 
poration, and  exercises  no  power  or  privilege  which  is  not  derived 
from  the  charter. 

Then  Justice  Story  in  discussing  exemptions  in  U.  S.  vs. 
Wilder47  said  that  a  distinction  has  often  been  "taken  by 
writers  on  public  law,  as  to  the  exemption  of  certain  things 
from  all  private  claims;  as,  for  example,  things  devoted  to 
sacred,  religious  and  public  purposes;  things  extra  com- 

44  245  Fed.  R.,  137. 

45  252  Fed.  R.,  627. 

46  9  Wheaton,  904,  6  L.  Ed.,  244. 

47  3  Sumner,  308  (1838),  at  p.  315. 


IMMUNITY  OF  PUBLIC  VESSELS  AND  GOODS  77 

mercium  et  quorum  non  est  commercium.  That  distinction 
might  well  apply  to  property  like  public  ships  of  war,  held 
by  the  sovereign  jure  coronae,  and  not  be  applicable  to  the 
common  property  of  the  sovereign  of  a  commercial  character, 
or  engaged  in  the  common  business  of  commerce." 

Certainly  the  opinion  in  the  Yucatan  Hemp  Case48  is  a 
strong  expression  of  this  theory,  although  the  actual  decision 
turned  on  the  fact  that  Yucatan  was  not  a  sovereign  state, 
and  in  this  way  the  case  is  very  similar  to  that  of  the  Char- 
kieh.  In  the  second  Maipo  Case49  Judge  Hough,  in  the  Dis- 
trict Court  of  the  Southern  District  of  New  York,  although 
feeling  bound  to  grant  exemption  on  the  basis  of  the  previous 
Maipo  decision,50  went  on  to  state  that  it  was  his  opinion 
that  "when  a  sovereign  republic,  empire,  or  what  not,  goes 
into  business  and  engages  in  the  carrying  trade,  it  ought  to 
be  subject  to  the  liabilities  of  carriers  just  as  much  as  any 
private  person."  However,  the  judiciary  is  powerless  to 
remedy  the  situation,  he  says,  for  it  is  unable  to  dictate  and 
define  for  a  foreign  government  what  it  (the  government) 
should  consider  to  be  a  governmental  function.  If,  as  in  this 
case,  the  foreign  government  officially  declares  that  the  com- 
mercial business  carried  on  is  a  governmental  function,  the 
court  is  unable  to  go  behind  this  declaration  and  must  accept 
it  with  the  resulting  dismissal  of  the  ship  from  the  libel 
proceedings. 

This  rule,  that  the  court  must  accept,  as  conclusive,  an 
official  declaration  by  the  foreign  sovereign,  or  a  suggestion 
by  the  United  States  government  as  to  the  national  character 
and  use  of  a  vessel,  has  been  followed  in  practically  every 
case  with  the  exception  of  the  recent  case  of  the  Attualita,51 
where  the  court  held  that  a  suggestion  by  the  Federal  Gov- 
ernment could  be  disregarded  when  it  was  not  actually  in  the 
form  of  a  demand  for  the  release  of  the  vessel.52 

48  103  Atl.  R.,  397- 

49  259  Fed.  R.,  367. 

50  252  Fed.  R.,  627. 

61  238  Fed.  R.,  909. 

62  For  a  further  discussion  of  this  case,  see  pages  82,  83. 


78          RECENT  PROBLEMS  IN  ADMIRALTY  JURISDICTION 

The  former  general  rule,  however,  was  applied  by  the 
Supreme  Judicial  Court  of  Massachusetts  in  igoS,53  when  an 
action  of  tort  was  brought  against  the  Intercolonial  Railway 
of  Canada.  A  member  of  the  Massachusetts  bar,  as  amicus 
curiae,  suggested  that  the  railroad  was  the  property  of  the 
King  of  the  United  Kingdom  of  Great  Britain  and  Ireland. 
On  appeal  it  appeared  that  the  railway  was  not  a  corporation, 
that  no  private  individual  or  corporation  had  any  interest  in 
it,  but  that  it  was  owned  and  operated  by  the  King  through 
his  government  of  Canada  for  the  public  purposes  of  Canada. 
The  court  held  that  the  action  should  be  dismissed  since  the 
court  had  no  jurisdiction  to  proceed  against  the  public  prop- 
erty of  a  sovereign  of  a  foreign  state. 

The  Carlo  Poma. — The  English  principle  of  immunity  was 
adopted  and  followed  in  the  Carlo  Poma54  in  May,  1919,  by 
the  Circuit  Court  of  Appeals  for  the  Second  Circuit.  A  libel 
had  been  filed  against  the  Italian  Steamer  by  a  shipper  of  a 
cargo  of  lemons  from  Messina  to  New  York.  This  cargo 
was  delivered  in  a  damaged  condition  owing  to  negligence  in 
loading,  stowage,  etc.  The  Italian  Ambassador  filed  a  sug- 
gestion that  the  vessel  was  owned  by  the  government  of  the 
Kingdom  of  Italy,  being  registered  in  the  name  of  the  Italian 
State  Railroads,  a  branch  of  the  said  government,  and  in  the 
possession  of  a  master  employed  and  paid  by  the  government, 
and  wholly  manned  and  operated  by  a  crew  employed  and 
paid  by  the  same  government.  This  suggestion  was  held 
conclusive55  and  exemption  was  thereupon  granted,  and  the 
Court  took  pains  to  restate  that  the  American  rule  was  that, — 
one  of  the  elements  required  for  immunity  was  that  the  ship 
or  property  should  be  in  the  actual  possession  of  the  sov- 
ereign at  the  time  the  process  is  served. 

53  Mason  vs.  Intercolonial  Railway  of  Canada,  197  Mass.,  349. 

8*  259  Fed.  R.,  369. 

65  The  Supreme  Court  on  February  28,  1921,  held  that  the  sugges- 
tion by  the  Ambassador  was  not  in  due  form,  as  it  should  have 
come  through  the  official  channels  of  the  United  States  instead  of 
being  made  directly  to  the  court  by  the  Ambassador.  See  also  the 
case  of  the  Pesaro,  decided  the  same  day. 


IMMUNITY  OF  PUBLIC  VESSELS  AND  GOODS  79 

Requisitioned  Ships.  The  Effect  of  Requisition  on  Char- 
ter Parties. — During  the  war  a  Greek  vessel  was  chartered  in 
a  port  of  the  United  States  by  a  charter  party.  This  agree- 
ment contained  the  usual  exemption  from  liability  for  "  loss 
or  damage  occasioned  by  ...  arrest  and  restraint  of  princes, 
rulers,  or  people."  Before  proceeding  to  her  loading  dock  to 
take  cargo  under  the  charter,  the  vessel  was  requisitioned  by 
the  Kingdom  of  Greece  for  government  service  by  orders 
transmitted  through  its  legation  in  Washington.  On  a  libel 
suit  in  admiralty  for  breach  of  charter  party  the  vessel  was 
held  released  from  the  obligations  of  her  charter  by  reason  of 
the  intervening  requisition.56  Of  course  the  question  here 
was  simply  as  to  whether  the  provision  of  the  contract  pro- 
tected the  owner  in  a  case  of  requisition.  It  was  not  neces- 
sary to  decide  whether  the  court  could  entertain  jurisdiction 
over  a  government  requisitioned  vessel.  However,  Judge 
Hough  did  say  that  "considering  the  probability  of  other 
cases  more  or  less  similar  arising  during  the  present  world 
war,  attention  is  called  to  the  fact  that  this  libellant  is  a 
Canadian  Corporation  asserting  a  right  against  a  res  pres- 
ently used  by  the  government  of  Greece.  In  my  opinion 
there  is  no  compulsion  upon  a  court  of  admiralty  to  entertain 
such  a  suit,  and  it  is  advisable  to  decline  jurisdiction  for 
political  reasons." 

Then  in  the  case  of  the  Adriatic57  the  Circuit  Court  for  the 
Third  Circuit  dismissed  that  ship  from  libel  in  rem  for  dam- 
ages sustained  by  breach  of  a  charter  party.  A  suggestion 
had  been  filed  that  the  vessel  was  actually  requisitioned  by 
the  British  Government  while  on  the  high  seas  and  before  the 
arrival  for  her  to  perform  the  charter.  The  Charter  con- 
tained a  provision  that,  "If  vessel  be  requisitioned  by  the 
British  Admiralty,  this  charter  is  to  be  null  and  void." 

The  court  held  that,  "  in  accordance  with  the  rule  that '  the 
courts  of  one  independent  government  will  not  sit  in  judg- 
ment on  the  validity  of  the  acts  of  another  done  within  its 
own  territory '  it  is  not  within  the  province  of  a  court  of  this 

56  Athanasios,  228  Fed.  R.,  558  (1915). 
67  258  Fed.  Rep.,  902  (1919). 


8O          RECENT  PROBLEMS  IN  ADMIRALTY  JURISDICTION 

country  to  attempt  to  determine  whether  the  requisition  of 
the  vessel  was  valid  or  invalid  under  the  laws  of  Great 
Britain.  It  must  here  be  accepted  as  legal." 

The  Immunity  of  Requisitioned  Ships  from  Jurisdiction. 
English  Cases. — The  British  Admiralty  Courts,  pursuing 
their  generally  liberal  policy  of  granting  immunity  to  public 
vessels,  have  extended  exemption  to  ships  requisitioned  dur- 
ing the  war  by  the  British  Government  and  to  those  requisi- 
tioned by  foreign  governments. 

On  September  3,  1914,  the  Crown  requisitioned  the  Broad- 
mayne,  a  tank  steamer  engaged  in  carrying  fuel  oil  for  the 
British  Navy.  This  vessel  was  stranded  in  1915  and  was 
salvaged  by  the  Tug  R.  and  an  action  in  rem  for  salvage  was 
begun.58  A  motion  was  served  on  behalf  of  the  Crown  to 
the  effect  that  the  cargo  of  oil  belonged  to  the  Crown  and 
thereupon  the  claim  against  the  cargo  was  dropped. 

The  Effect  of  Requisition. — A  very  careful  discussion  of 
the  effect  of  requisition  upon  a  merchant  ship  is  made  by  the 
Court. 

Requisition  is  declared  to  be  in  effect  a  hiring  which  the 
owner  must  accept.  The  property  in  the  ship  is  not  taken 
out  of  the  owner  and  vested  in  the  Crown  and,  therefore,  a 
requisitioned  ship  is  not  for  all  purposes  in  the  same  position 
as  a  vessel  owned  by  the  Crown.59  But  the  fact  that  the 
ownership  is  not  changed  does  not  prevent  the  ship  from  be- 
ing exempt  so  long  as  she  remains  under  the  requisition 
and  in  the  service  of  the  Crown. 

A  ship  which  is  requisitioned  by  the  Crown  is  as  free  from  arrest 
as  a  King's  ship  of  war  would  be  and  the  exemption  extends  as  well 
to  claims  of  salvage  as  to  claims  of  collision  or  other  claim. 

58  The  Broadmayne,  1916,  P.  D.,  65. 

59  Cf.  the  Scarpen,  1916,  P.  D.,  303.    A  requisitioned  British  tug  ren- 
dered salvage  services  to  a  Norwegian  ship  and  sought  to  recover 
salvage  remuneration.    A  shipping  Act  of  1894  provided  that  no 
claim  coul'd  be  made  for  salvage  services  rendered  by  a  ship  "be- 
longing to  His  Majesty."    Held,  that  a  requisition  by  the  Admiralty 
did  not  make  the  tug  a  ship  belonging  to  His  Majesty,  nor  did  the 
terms  and  conditions  of  the  hiring  have  that  effect,  and  that,  there- 
fore,  the  owners,   master  and   crew   were   entitled  to  prosecute   a 
claim  for  salvage,  although  the  tug  could  not  have  rendered  the 
services  without  the  consent  of  the  Crown. 


IMMUNITY  OF  PUBLIC  VESSELS  AND  GOODS  8 1 

A  vessel  requisitioned  by  the  Italian  Government  from 
private  owners  and  carrying  war  material  for  that  govern- 
ment was  held  to  have  the  same  privilege  from  arrest  in  a 
collision  case  as  a  ship  requisitioned  by  the  British  Govern- 
ment.60 In  a  recent  case  a  requisitioned  Portuguese  vessel 
which  was  engaged  on  an  ordinary  trading  voyage  and  was 
an  ordinary  merchant  ship  in  every  respect  performing  the 
functions  of  a  private  trader  was  sued  for  salvage  services. 
The  lower  English  court  held  that  the  ship  was  subject  to 
jurisdiction  even  though  it  was  proved  that  she  belonged  to 
the  Portuguese  Government,  because  it  was  not  devoted  to 
public  national  service.  The  Appeal  Court,  however,  felt 
that  it  was  bound  to  accept  the  declaration  of  the  Portuguese 
Consul  and  Charge  d'Affaires  that  the  vessel  was  at  all  times 
a  public  vessel  belonging  to  the  Portuguese  Government. 

In  the  days  when  the  early  decisions  were  given  no  doubt  what 
were  called  "  Government  Vessels  "  were  confined  al'most  entirely,  if 
not  exclusively  to  vessels  of  war.  But  in  modern  times  Sovereign 
and  Sovereign  States  have  taken  to  owning  ships  which  may  to  a 
greater  extent  still  be  employed  as  ordinary  trading  vessels  engaged 
in  ordinary  trading. 

Whatever  the  court  felt  should  be  the  rule  in  such  cases, 
it  regarded  itself  bound  by  the  Parlement  Beige. 

Torfrida  vs.  Porto  Alexandre.** — A  merchant  ship  owned 
by  a  Greek  subject,  and  which,  by  arrangement  between  the 
Greek  and  British  Governments,  had  been  requisitioned  by 
the  British  for  the  use  of  the  British  and  Italian  Govern- 
ments, and  which  was  carrying  coal  for  the  latter,  was  held 
free  from  arrest  or  detention,  "  so  long  as  the  ship  shall  re- 
main in  the  service  of  either  the  Italian  or  the  British  Gov- 
ernment for  public  or  state  purposes." 62 

American  Cases.  Foreign  Requisitioned  Vessels. — Two 
important  cases  in  our  Admiralty  Courts  raising  the  question 
of  the  exemption  to  be  accorded  vessels  requisitioned  by  for- 
eign governments  during  the  late  World  War  have  resulted 

60  The  Messicano,  32  T.  L.  R.,  519. 

81  Lloyd's  List,  L.  R.,  vol.  i,  p.  191  (1919),  before  L.  J.  Bankes,  L, 
J.  Warrington  and  L.  J.  Scrutton. 
C2  The  Errisos,  Lloyd's  List,  Oct.  24,  1917,  pages  5-8. 


82  RECENT  PROBLEMS  IN  ADMIRALTY  JURISDICTION 

in  conflicting  opinions.  The  Circuit  Court  for  the  Fourth 
Circuit  in  the  Attualita  Case63  in  1916  held  that  a  merchant 
vessel  requisitioned  by  the  government  of  Italy,  and  employed 
in  that  government's  service  at  a  fixed  freight,  but  which 
remained  under  the  control  and  management  of  the  owner, 
who  employed  and  paid  the  officers  and  crew,  was  not  exempt 
from  a  suit  in  rem  in  a  court  of  the  United  States  for  a 
maritime  tort.  (The  libeled  ship,  the  Attualita,  had,  in  col- 
lision, sunk  a  Greek  steamship  in  the  Mediterranean.)64 

The  Court  had  evidently  been  watching  the  development 
and  extension  of  immunity  to  vessels  of  this  class  with  con- 
siderable apprehension  and  felt  that  with  the  Attualita  Case 
it  was  time  to  register  a  restraining  opinion.  The  first  step 
taken  by  the  Court,  as  has  been  pointed  out,65  was  the  rule 
that  the  suggestion  of  the  Government  of  the  United  States 
as  to  the  national  character  of  the  vessel  could  be  disregarded 
so  long  as  it  was  not  in  the  form  of  a  demand  for  the  ship's 
release.  Secondly,  the  Court  reached  a  conclusion  that  the 
real  and  fundamental  reason  why  immunity  is  granted  is  by 
reason  of  the  fact  that  it  can  be  safely  accorded.  The  lim- 
ited numbers  of  exempted  ships  and  the  ordinarily  responsi- 
ble character  of  the  diplomats  or  agents  in  charge  of  the 
property  in  question,  and  the  dignity  and  honor  of  the  sov- 
ereignty in  whose  service  they  are,  make  abuse  of  such 
immunity  rare. 

This  attempt  to  put  a  narrow  interpretation  upon  the  broad 
principles  of  equality  heretofore  laid  down  in  our  courts  only 
further  illustrates  the  extent  to  which  the  Court  was  prepared 
to  go  to  deny  immunity  to  a  class  of  vessels  over  which  it 

68  238  Fed.  R.,  909. 

64  That  a  vessel  libelled  for  a  tort  committed  on  the  high  seas  sails 
under  a  foreign  flag,  and  that  the  libellant  is  a  subject  of  another 
foreign  nation,  is  not  sufficient  to  require  a  court  of  admiralty  of  the 
United  States  to  decline  jurisdiction.    Cf.  The  Belgenland,  114  U. 
S.,  368. 

65  Cf.  above,  page  77. 


IMMUNITY  OF  PUBLIC  VESSELS  AND  GOODS  83 

believed  that  public  policy  required  an  exercise  of  judicial 
restraint.     The  Court  says : 

There  are  many  reasons  which  suggest  the  inexpediency  and  the 
impolity  of  creating  a  class  of  vessels  for  which  no  one  is  in  any 
way  responsible.  For  actions  of  the  public  armed  ships  of  a  sover- 
eign, and  those,  whether  armed  or  not,  which  are  in  the  actual  pos- 
session, custody,  and  control  of  the  nation  itself,  and  are  operated 
by  it,  the  nation  would  be  morally  responsible,  although  without  her 
consent  not  answerable  legally  in  her  own  or  other  courts.  For  the 
torts  and  contracts  of  an  ordinary  vessel,  it  and  its  owners  are  liable. 
But  the  ship  in  this  case,  and  there  are  now  apparently  thousands 
like  it,  is  operated  by  its  owners,  and  for  its  actions  no  government 
is  responsible,  at  law  or  in  moral's. 

However,  two  years  later,  in  November,  1918,  after  the 
United  States  had  entered  the  war,  the  District  Court  of 
New  Jersey  in  the  Roseric66  would  not  follow  the  lead  of  the 
Attualita  Case,  and  in  fact  criticized  the  reasoning  of  that 
previous  case.  The  Roseric  was  a  vessel  requisitioned  by  the 
British  Government  and  was  in  collision  in  New  York  har- 
bor. At  the  time  of  the  tort  it  was  manned  by  officers  and 
crew  in  the  employment  of  the  owner.  No  arrest  under 
process  was  permitted  by  the  court.  It  is  believed  that  the 
fact  that  the  United  States  and  Great  Britain  were  then  co- 
belligerents  against  a  common  enemy  argued  very  strongly 
to  a  reversal  of  the  Attualita  opinion.  The  court  denied  that 
the  British  Government  was  not  morally  responsible  for  the 
actions  of  the  ship.  The  effect  of  the  requisition  was  to 
place  the  ship,  its  owner,  officers  and  crew,  under  the  com- 
pulsion of  sovereignty.  According  to  the  Court : 

Whether  the  government  should  operate  the  ship  by  the  owner's 
officers  and  crew  or  others  was  for  the  sovereign's  exclusive  deter- 
mination. .  .  .  The  officers  and  crew,  as  well  as  the  ship,  for  the  time 
being  became  the  sovereign's  instrumentalities  and  whatever  posses- 
sion of  the  ship  they  obtained  by  reason  of  this  employment  was  the 
sovereign's  possession  while  the  requisition  was  in  force. 

In  regard  to  the  suggested  irresponsibility  in  the  Attualita 
Case,  it  is  pointed  out  that  in  such  cases  the  owner  of  the 
ship  could  still  be  held  liable  in  personam  for  the  negligence 
of  the  officers  and  crew  and  furthermore  the  ship  itself  would 
still  be  liable  in  rem  after  the  period  of  requisition  was  up. 
The  lien  on  the  ship  for  a  maritime  tort  attached  and  sur- 

86  254  Fed.  Rep.,  155. 


84          RECENT  PROBLEMS  IN  ADMIRALTY  JURISDICTION 

vived  although  the  right  to  enforce  it  during  the  period  of 
requisition  was  in  abeyance  by  reason  of  immunity  trom 
arrest.668 

The  previous  decision  is  again  taken  to  task  on  the  ground 
that  immunity  is  not  based  upon  the  idea  that  it  may  be 
"  safely  accorded  "  but  on  account  of  the  dignity  and  inde- 
pendence of  the  foreign  nation,  and  because  it  is  necessary, 
for  the  well-being  of  the  nation  that  it  serves,  that  it  shall 
not  be  hampered  or  interrupted  in  the  use  of  such  instru- 
mentalities. 

These  two  cases  bring  the  real  point  at  issue  down  to  the 
question  whether  the  American  rule  that  ownership  and  pos- 
session by  the  government  must  be  actual  is  to  be  set  aside 
or  not.  The  Roseric  decision  can  be  reconciled  with  this  prin- 
ciple only  if  it  is  conceded  that,  owing  to  the  fact  that  the 
ship  and  its  entire  equipment  is  under  the  absolute  dominion 
of  the  sovereign,  possession  in  the  government  can  be  im- 
puted or  implied.  This  is  the  only  possible  reasoning  by 
which  the  court  could  have  been  led,  in  this  case,  to  announce 
the  doctrine  that  it  is  not  the  ownership  or  exclusive  posses- 
sion of  the  instrumentality  by  the  sovereign  that  exempts  it 
from  judicial  process,  but  its  appropriation  and  devotion  to 
such  service. 

The  exigencies  of  the  recent  war  and  the  fact  that  a  seizure 
and  detention  of  such  ships  would  result  in  seriously  hamper- 
ing the  co-belligerents  in  prosecuting  such  war  against  the 
common  enemy  in  their  joint  struggle  placed  the  question  in 
a  different  light  in  the  eyes  of  the  court  and  argued  the 
expediency  of  such  imputation. 

Vessels  Requisitioned  by  the  United  States  Shipping 
Board. — Section  9  of  the  Shipping  Board  Act  of  September 
7,  I9i6,67  provided  that  vessels  purchased,  chartered  or  leased 
by  the  Board  "while  employed  solely  as  merchant  vessels 

66a  Since  the  completion  of  this  work  in  1920,  the  Supreme  Court 
has  decided  in  the  Western  Maid  case  (Jan.,  1922)  that  the  hability 
does  not  survive.  Not  only  is  the  vessel  immune  from  arrest,  but  it 
is  immune  entirely  from  liability  and  for  all  time. 

67  39  Stat,  730  (comp.  St.,  1916,  sec.  8146  e). 


IMMUNITY  OF  PUBLIC  VESSELS  AND  GOODS  85 

shall  be  subject  to  all  laws,  regulations  and  liabilities  govern- 
ing merchant  vessels  whether  the  United  States  be  interested 
therein  as  owner,  in  whole  or  in  part,  or  hold  any  mortgage, 
lien  or  other  interest  therein."  This  provision  was  re-en- 
acted by  the  Act  of  July  15,  19 18.68 

Under  the  Act  of  June  15,  IQI7,69  the  President  was  em- 
powered to  requisition  private  shipping  for  use  and  opera- 
tion by  the  United  States.  By  a  Presidential  Order  of 
July  n,  1917,  the  President  delegated  this  power  of  requisi- 
tion to  the  Shipping  Board  and  the  Emergency  Fleet  Cor- 
poration. 

The  Lake  Monroe  while  in  course  of  construction  was 
requisitioned.  It  was  completed  by  the  Corporation  and 
documented  in  the  name  of  the  United  States.  Later  it  was 
chartered  to  a  private  company  for  the  carriage  of  a  private 
cargo  of  coal.  An  action  in  rem  against  this  vessel  for  col- 
lision was  begun.  The  question  was  therefore  raised  as  to 
whether  vessels  requisitioned  under  the  Act  of  1917  were 
deprived  of  immunity  by  reason  of  section  9  of  the  Act 
of  1916  re-enacted  in  1918.  The  Supreme  Court  held70 
that  the  two  Acts  were  to  be  construed  together  and  exemp- 
tion must  be  denied  the  Lake  Monroe  because  the  provision 
"  purchased,  chartered  or  leased  "  included  a  requisition  of  a 
vessel.  This  was  nothing  more,  said  the. Court,  than  a  con- 
tract for  the  temporary  use  of  a  vessel  or  its  services  not 
amounting  to  a  demise,  and  indeed  the  word  "charter"  is 
defined  in  the  Act  itself  as  "any  agreement,  contract,  lease 
or  commitment  by  which  the  possession  or  services  of  a 
vessel  are  secured  for  a  period  of  time,  or  for  one  or  more 
voyages,  whether  or  not  a  demise  of  the  vessel." 71 

68  40  Stat.,  900,  c.  152. 

69  C.  29,  40  Stat.,  182. 

70  The  Lake  Monroe,  250  U.  S.,  246;  cf.  also  Ex  parte  Whitney, 
249  U.  S.,  115. 

71  This  doctrine  has  been  extended  in  a  very  recent  case.    The 
Mavisbrook,  270  Fed.  R.,  ion,  decided  March  I,  1921,  in  the  District 
Court  of  Maryland.    Judge  Rose  held  that  the  fact  that  a  vessel 
was  under  requisition  and  was  operated  by  the  United  States  at  the 
time  of  a  collision  would  not  exempt  her  from  a  suit  in  rem  for  the 


86          RECENT  PROBLEMS  IN  ADMIRALTY  JURISDICTION 

As  early  as  April,  1918,  the  District  Court,  Southern  Dis- 
trict of  New  York,  had,  reached  the  same  conclusion  in  the 
case  of  The  Florence  H.72  However,  the  facts  were  some- 
what complicated  in  this  earlier  case  because  the  vessel  at  the 
time  of  the  collision  was  on  the  high  seas,  manned  by  a 
French  crew  under  a  charter  by  the  Shipping  Board  to  the 
French  Government  to  transport  a  cargo  of  food.  The  court 
felt  that  the  ship  was  being  employed  "  solely  as  a  merchant 
vessel"  and  that  the  mere  ownership  of  the  cargo  by  the 
French  Government  did  not  make  the  employment  of  the 
vessel  other  than  that  of  the  usual  "  merchant  vessel."  Since 
the  stipulations  did  not  show  that  the  voyage  was  a  part  of 
the  allied  military  operations  of  France  and  the  United 
States,  it  would,  said  the  court,  under  the  modern  practice  of 
war,  "be  extremely  difficult  to  undertake  any  line  of  limita- 
tion between  what  was  a  part  of  the  military  operations  of  a 
government  and  any  ordinary  mercantile  activities." 

Furthermore  it  was  held  that  the  libel  would  not  create 
any  jurisdictional  embarrassment  because  it  required  a 
scrutiny  into  the  conduct  of  the  French  crew,  acting  at  the 
time  directly  under  the  authority  of  the  French  republic, 
because  the  tort  occurred  on  the  high  seas  and  under  the 
American  flag. 

Act  of  March  p,  1920. — The  matter  of  suits  against  the 
United  States  in  admiralty  has  now  been  provided  for  by 
statute.  In  the  2d  session  of  the  66th  Congress  an  Act  was 
passed  which  provided  that  no  vessel  or  cargo  owned  or  pos- 
sessed by  the  United  States  or  the  Shipping  Board  shall  here- 
after be  liable  to  arrest  or  seizure  by  judicial  process  in  the 
United  States.  In  thus  asserting  the  government's  immunity 
from  actions  in  rem  in  admiralty,  the  former  acts,  in  so  far 
as  they  put  the  ships  of  the  Emergency  Fleet  Corporation  on 
an  equal  basis  with  other  private  merchant  ships  in  the  matter 

collision  after  her  return  to  the  owner.    If  this  is  sustained,  all  ac- 
tions in  rem  against  requisitioned  ships  will  survive  until  return  to 
their  owners.     (Over-ruled  by  the  Supreme  Court  in  the  Western 
Maid  case,  January,  1922.) 
"  248  Fed.  Rep.,  1012. 


IMMUNITY  OF  PUBLIC  VESSELS  AND  GOODS  87 

of  liability  to  arrest  and  seizure,  have  been  repealed  and  in- 
stead Congress  has  made  provision  by  the  recent  act  for  libels 
to  be  brought  in  personam  against  the  United  States  or  the 
Corporation.  These  suits  are  to  be  brought  in  the  District 
Courts  "  in  cases  where,  if  such  vessel  were  privately  owned 
or  operated,  or  if  such  cargo  were  privately  owned  and  pos- 
sessed, a  proceeding  in  admiralty  could  be  maintained  at  the 
time  of  the  commencement  of  the  action."  Money  judgments 
against  the  United  States  are  to  bear  interest  at  the  rate  of 
four  per  cent  per  annum  until  satisfied,  or  at  any  higher  rate 
stipulated  in  the  contract  upon  which  the  decree  is  based. 
Section  4  provides : 

That  if  a  privately  owned  vessel  not  in  the  possession  of  the 
United  States  or  of  such  corporation  is  arrested  or  attached  upon 
any  cause  of  action  arising  or  alleged  to  have  arisen  from  previous 
possession,  ownership,  or  operation  of  such  vessel  by  the  United 
States  or  by  such  corporation,  such  vessel  shall  be  released  without 
bond  or  stipulation  therefor  upon  the  suggestion  by  the  United 
States,  through  its  Attorney  General  or  other  duly  authorized  law 
officer,  that  it  is  interested  in  such  cause,  desires  such  release,  and 
assumes  the  liability  for  the  satisfaction  of  any  decree  obtained  by 
the  libelant  in  such  cause,  and  thereafter  such  cause  shall  proceed 
against  the  United  States  in  accordance  with  the  provisions  of  this 
Act 

But  perhaps  the  most  important  provision  of  all  in  the  Act 
is  that  contained  in  Section  7.  If  any  Shipping  Board  vessel 
or  cargo  is  arrested  in  a  process  in  a  foreign  court,  or  if  the 
foreign  court  entertains  a  suit  against  the  master  in  regard 
to  the  possession  and  operation  of  the  vessel  and  cargo,  the 
Secretary  of  State  may  in  his  discretion  direct  the  nearest 
United  States  Consul  to  claim  immunity,  and  to  execute  a 
bond  on  behalf  of  the  United  States  for  the  release  of  the 
ship  or  cargo,  and  in  the  case  of  a  suit  against  the  master  the 
Consul  may  be  authorized  to  enter  the  appearance  of  the 
United  States  and  to  pledge  the  credit  of  the  government  to 
the  payment  of  any  judgment  and  cost  that  may  be  entered 
in  such  suit.73 

73  The  wording  of  sec.  7  in  full  is  as  follows :  "  That  if  any  vessel 
or  cargo  within  the  purview  of  sections  i  and  4  of  this  Act^is  ar- 
rested, attached,  or  otherwise  seized  by  process  of  any  court  in  any 
country  other  than  the  United  States,  or  if  any  suit  is  brought 


88  RECENT  PROBLEMS   IN  ADMIRALTY  JURISDICTION 

Thus  is  accomplished  one  of  the  main  purposes  of  the  Act, 
which  was  to  provide  in  all  cases  for  the  release  of  merchant 
vessels  belonging  to  the  United  States  from  arrest  and  attach- 
ment in  foreign  jurisdictions.  It  is  indeed  to  be  hoped  that 
other  governments  may  adopt  the  same  policy  in  regard  to 
their  requisitioned  and  government-owned  merchant  ships; 
thus  frequent  cases  of  injustice  arising  from  the  enforcement 
of  immunity  will  in  a  great  measure  be  obviated,  as  well  as 
any  possible  international  friction  that  might  arise  in  the 
future  over  the  large  and  growing  number  of  claims  of  im- 
munity on  behalf  of  government  operated  merchant  vessels. 

One  of  the  strong  criticisms  of  the  principle  of  immunity 
from  a  suit  of  any  nature  as  applied  by  the  courts  was 

therein  against  the  master  of  any  such  vessel  for  any  cause  of  action 
arising  from,  or  in  connection  with,  the  possession,  operation,  or 
ownership  of  any  such  vessel,  or  the  possession,  carriage,  or  owner- 
ship of  any  such  cargo,  the  Secretary  of  State  of  the  United  States 
in  his  discretion,  upon  the  request  of  the  Attorney  General  of  the 
United  States,  or  any  other  officer  duly  authorized  by  him,  may  direct 
the  United  States  consul  residing  at  or  nearest  the  place  at  which  such 
action  may  have  been  commenced  to  claim  such  vessel  or  cargo  as 
immune  from  such  arrest,  attachment,  or  other  seizure,  and  to  ex- 
ecute an  agreement,  undertaking,  bond,  or  stipulation  for  and  on  be- 
half of  the  United  States,  or  the  United  States  Shipping  Board,  or 
such  corporation  as  by  said  court  required,  for  the  release  of  such 
vessel  or  cargo,  and  for  the  prosecution  of  any  appeal;  or  may,  in 
the  event  of  such  suits  against  the  master  of  any  such  vessel,  direct 
said  United  States  Consul  to  enter  the  appearance  of  the  United 
States,  or  of  the  United  States  Shipping  Board,  or  of  such  corpora- 
tion, and  to  pledge  the  credit  thereof  to  the  payment  of  any  judg- 
ment and  cost  that  may  be  entered  in  such  suit.  The  Attorney  Gen- 
eral is  hereby  vested  with  power  and  authority  to  arrange  with  any 
bank,  surety  company,  person,  firm,  or  corporation  in  the  United 
States,  its  Territories  and  possessions,  or  in  any  foreign  country,  to 
execute  any  such  aforesaid  bond  or  stipulation  as  surety  or  stipulator 
thereon,  and  to  pledge  the  credit  of  the  United  States  to  the  indemni- 
fication of  such  surety  or  stipulator  as  may  be  required  to  secure 
the  execution  of  such  bond  or  stipulation.  The  presentation  of  a  copy 
of  the  judgment  roll  in  any  such  suit,  certified  by  the  clerk  of  the 
court  and  authenticated  by  the  certificate  and  seal  of  the  United 
States  consul  claiming  such  vessel  or  cargo,  or  his  successor,  and  by 
the  certificate  of  the  Secretary  of  State  as  to  the  official  capacity  of 
such  consul,  shall  be  sufficient  evidence  to  the  proper  accounting 
officers  of  the  United  States,  or  of  the  United  States  Shipping  Board, 
or  of  such  corporation,  for  the  allowance  and  payment  of  such  judg- 
ments :  Provided,  however,  That  nothing  in  this  section  shall  be  held 
to  prejudice  or  preclude  a  claim  of  the  immunity  of  such  vessel  or 
cargo  from  foreign  jurisdiction  in  a  proper  case." 


IMMUNITY  OF  PUBLIC  VESSELS  AND  GOODS  89 

that,  although  the  ships  of  this  class  regularly  claimed  and 
were  accorded  immunity  in  cases  where  they  or  their  crews 
were  at  fault,  reciprocal  immunity  was  not  conceded  by  the 
Government  to  private  ships  that  might  wrongfully  injure 
them.  And  likewise  in  cases  of  salvage  services  rendered, 
these  government  ships  were  permitted  to  go  into  court  to 
recover  a  remuneration,  whereas  if  the  conditions  had  been 
reversed,  the  salvors  of  a  government  ship  would  have  been 
unable  to  recover. 

This  is  well  exampled  by  the  instance  of  a  Norwegian  sail- 
ing vessel,  the  Dvergso,  which  was  towed  some  distance 
across  the  Atlantic  by  the  Cripple  Creek,  a  steamship  belong- 
ing to  the  United  States  Shipping  Board.  Without  delay 
bail  was  demanded  from  the  salvaged  vessel,  and  had  it  not 
been  forthcoming  she  would  have  been  arrested. 

By  this  act,  suits  for  salvage  services  rendered  an  Ameri- 
can Shipping  Board  vessel  can  be  brought  by  an  action  in 
personam  against  the  United  States  in  a  Federal  District 
Court,  and  on  the  other  hand  the  United  States,  and  the  crew 
of  any  merchant  vessel  owned  and  operated  by  it,  has  the 
right  to  collect  and  sue  for  salvage  services  rendered  by  such 
vessel  and  crew,  and  in  the  latter  case  the  money  recovered 
by  the  United  States,  in  contradistinction  to  that  recovered 
by  the  crew,  goes  into  the  National  Treasury  to  the  credit  of 
the  Shipping  Board  or  the  Emergency  Fleet  Corporation. 

The  Immunity  of  Government-owned  Cargoes 
The  general  rule  of  Admiralty  law  applied  to  cargoes,  other 
than  government  cargoes,  is  that  suits  for  salvage  may  be 
maintained  in  rem  against  the  property  saved  or  the  proceeds 
thereof.  Thus  it  has  frequently  occurred  that  salvors  have 
attempted  to  bring  actions  against  cargoes  owned  by  the  sov- 
ereign power  for  salvage  contribution.  The  Supreme  Court 
has  held  in  the  Davis74  that  a  libel  will  be  and  is  enforceable 
against  personal  property  of  the  United  States  when,  at  the 
time  of  the  salvage  services,  the  possession  of  the  property  by 
the  United  States  was  not  actual. 


T*io  Wall.,  15  (1869). 


9O  RECENT  PROBLEMS  IN  ADMIRALTY  JURISDICTION 

A  shipment  of  cotton  was  made  by  the  United  States  from 
Savannah  to  New  York  on  a  private  vessel.  The  cotton  had 
been  delivered  to  the  master,  who  was  not  an  officer  of  the 
United  States,  for  delivery  to  an  agent  of  the  Government  in 
New  York.  It  was  salvaged  and  libel  proceedings  were  be- 
gun before  it  was  delivered  to  the  United  States.  The  court 
decided  that  the  action  in  rem  did  not  have  the  effect  of 
taking  the  property  out  of  the  possession  of  the  government, 
and  thus  in  no  way  was  the  possession  of  the  United  States 
invaded. 

The  earlier  case  of  U.  S.  vs.  Wilder75  has  often  been  cited 
to  support  the  contention  that  a  lien  against  government 
property  can  be  enforced  by  an  action  in  rem  in  all  cases. 
This  undoubtedly  is  the  result  of  the  dicta  by  Justice  Story 
found  therein,  which  have  already  been  referred  to.76  Al- 
though goods  belonging  to  the  United  States  shipped  on  a 
private  schooner  were  salvaged,  it  must  be  pointed  out  that 
the  dicta  in  no  way  affected  the  case  because  it  was  a  suit  in 
trover,  brought  by  the  United  States  to  recover  the  goods, 
and  since  the  government  was  voluntarily  within  the  juris- 
diction of  the  court,  the  court  held  that  the  United  States 
officers  had  no  right  to  take  the  goods  which  had  been  sal- 
vaged without  paying  or  securing  their  contribution  to  the 
general  average. 

Set-offs  against  Governments  Submitting  to  Jurisdiction. — 
On  the  same  ground  as  the  Wilder  decision  it  is  now  well 
established  that  when  a  government  has  voluntarily  come 
within  the  jurisdiction,  claims  against  the  property  or  vessel 
of  the  government  may  be  made  by  way  of  set-off. 

A  naval  ship  of  the  United  States  captured  the  Siren  in 
Charleston  in  1865.  The  Government  instituted  prize  court 
proceedings,  and  the  Siren  was  sold  and  the  money  was  turned 
over  to  the  United  States.  But  it  seems  that  while  the  Siren 
was  being  taken  to  the  port  of  adjudication  it  ran  into  and 
sank  a  ship  in  New  York  harbor.  The  owners  of  the  lost 

76  3  Sumner,  308  (1838). 
76  See  above,  page  77. 


IMMUNITY  OF  PUBLIC  VESSELS  AND  GOODS  91 

ship  asked  damages  from  the  fund  derived  from  the  sale  of 
the  Siren.  This  the  court  allowed  by  way  of  set-off  since 
the  United  States  was  already  voluntarily  within  the  juris- 
diction for  the  purpose  of  obtaining  a  prize  decree.77 

In  the  St.  Jago  de  Cuba,78  the  United  States  filed  a  libel 
against  the  ship  for  violation  of  slave  trade  laws,  and  sea- 
men's wage  and  material  men's  claims  were  allowed  and  paid 
by  way  of  set-off.  The  claims  arose  even  subsequent  to  the 
illegal  acts,  but  the  parties  were  ignorant  of  the  illegality  of 
the  voyage. 

The  general  rule  can  therefore  be  stated  that  when  the 
United  States  institute  a  suit,  they  waive  their  exemption,  so 
that  the  defendant  can  present  claims  of  set-off,  legal  and 
equitable  to  the  extent  of  the  demand  made  or  the  property 
claimed.  Then  the  United  States  stands,  with  reference  to 
the  right  of  the  defendant  or  claimant,  just  as  any  private 
suitor,  except  that  they  are  exempt  from  costs  and  affirmative 
relief  against  them  beyond  the  demand  or  property  in  con- 
troversy.79 

A  similar  rule  is  in  force  in  the  British  Courts,  as  is  evi- 
denced by  the  case  of  the  Marquis  of  Huntly,80  where,  when 
the  Admiralty  had  entered  an  appearance  under  the  English 
procedure,  a  cargo  of  ordnance  and  naval  stores  in  charge  of 
a  Lieutenant  as  government  agent  was  made  to  contribute 
along  with  the  ship  and  freight  in  the  contribution  for 
salvage  services  rendered. 

The  American  Rule  Contrasted  with  the  British  Rule. — 
Following  the  decisions  in  the  Davis81  and  Long  vs.  Tam- 
pico,82  that  immunity  is  only  granted  where  the  possession  is 
actual,  the  Circuit  Court  of  Appeals  for  the  Third  Circuit  in 
the  Johnson  Lighterage  Company,  No.  24  case,83  held  that  a 

"  The  Siren,  7  Wall.,  152. 

78  9  Wheaton,  409. 

79  Cf.  U.  S.  vs.  Ringgold,  8  Peters,  150,  and  U.  S.  vs.  Macdaniel,  7 
Peters,  16. 

803Hagg,  247  (1835). 
«  10  Wall.,  15. 

82  1 6  Fed.  Rep.,  491. 

83  231  Fed.  Rep.,  369  (1916). 


92  RECENT  PROBLEMS  IN  ADMIRALTY  JURISDICTION 

suit  in  rem  could  be  maintained  against  munitions  of  the 
Russian  government  which  were  salvaged  while  in  the  posses- 
sion of  a  Lighterage  Company  which  had  contracted  to  trans- 
port the  munitions  from  a  railroad  terminal  to  a  vessel  in 
New  York  harbor.  The  Lighterage  Company  had  no  other 
connection  with  the  foreign  government  and  the  property  was 
still  in  its  possession  when  libeled  and  seized  by  the  marshal. 
The  court  made  this  decision  even  in  the  face  of  affidavits 
filed  on  behalf  of  the  Russian  Government  with  the  Depart- 
ment of  State  to  the  effect  that  the  cargo  was  the  sole  and 
exclusive  property  of  the  Russian  Government.  The  court 
would  in  no  way  admit  that  the  Lighterage  Company  was  an 
agent  of  the  Russian  Government  but  classed  it  as  a  common 
carrier. 

Just  the  opposite  conclusion  was  reached  by  a  British  Court 
in  Vavasseur  vs.  Krupp  et  al.84  in  1878.  The  Mikado  of 
Japan  had  purchased  from  Krupps  in  Germany  certain  shells 
said  to  be  infringements  of  an  English  patent.  These  shells 
were  brought  to  England  by  a  certain  Ahrens  &  Co.  in  order 
to  be  put  on  board  a  Japanese  ship  of  war  building  there. 
The  English  patentee  obtained  an  injunction  against  the  Com- 
pany in  whose  custody  the  shells  were,  restraining  it  from 
removing  the  shells.  The  foreign  sovereign  then  applied  to 
be  made  a  defendant  to  the  suit.  The  court  overruled  the 
injunction  in  most  striking  terms  and  held  that  on  no  grounds 
could  the  property  of  a  sovereign  be  arrested  and  withheld, 
no  matter  in  whose  possession  it  was,  if  the  sovereign  de- 
manded that  it  be  released.  Indeed,  Lord  Justice  James  was 
shocked  at  what  he  considered  the  boldest  attempt  he  had  ever 
heard  of  to  interfere  with  the  right  of  a  foreign  sovereign  to 
deal  with  his  public  property.  Furthermore,  he  decided  that 
a  foreign  sovereign  who,  for  the  purpose  of  obtaining  his 
property,  had  submitted  to  be  made  a  defendant  in  an  action 
did  not  thereby  lose  his  rights. 

These  two  cases  well  illustrate  the  difference  in  attitude 
between  the  English  and  American  Courts.  So  strong,  how- 

8*9  Ch.  D.f  351  (1878). 


IMMUNITY  OF  PUBLIC  VESSELS  AND  GOODS  93 

ever,  is  the  present  American  tendency  to  escape  from  the 
extension  of  immunity  to  any  further  classes  of  subjects,  that 
it  is  the  opinion  of  the  writer  that  the  District  Court  for  the 
Eastern  District  of  Pennsylvania  in  the  case  of  the  Luigi85 
was  led  thereby  to  announce  a  doctrine  which  by  the  weight 
of  previous  decisions  is  not  at  all  warranted. 

The  Luigi  Criticised.  The  Release  of  Owners  from 
Bond. — A  libel  suit  was  instituted  against  the  Luigi,  an  Ital- 
ian requisitioned  vessel,  and  in  personam  against  the  owners 
for  breach  of  charter  party.  Upon  the  formal  suggestion  of 
the  Attorney  General  that  the  ship  was  a  requisitioned  ship 
and  engaged  in  business  for  the  government  of  Italy  in  carry- 
ing a  cargo  devoted  to  public  uses,  the  vessel  was  released. 
But  prior  to  this  suggestion  the  owners,  through  the  master, 
had  entered  bond  for  the  release  of  the  vessel  for  the  benefit 
of  the  Italian  Government.  After  the  release  of  the  vessel, 
the  court  refused  to  release  the  bond,  holding  that  the  further 
action  of  the  court  could  no  longer  affect  the  rights  of  the 
foreign  government,  but  private  rights  only.  The  suit  from 
then  on  was  between  private  individuals,  and  the  rule  of 
comity  was  not  allowed  to  have  retroactive  effect  and  "be 
applied  where  the  necessity  for  its  application  no  longer 
exists." 

In  the  Jassy86  the  owners  were  released  from  their  bond 
which  had  been  entered  to  procure  the  ship's  release  pending 
the  formal  suggestion  of  the  Government.  A  similar  pro- 
cedure was  adopted  in  the  Broadmayne.87  It  is  true  that 
both  the  actions  were  in  rem  only,  and  the  bonds  were  re- 
leased on  the  principle  that  the  appearance  and  giving  bail  by 
the  owner  did  not  change  the  character  of  the  action  from 
one  in  rem  to  one  in  personam. 

85  230  Fed.  R.,  493  (1916). 
86 1906,  P.  D.,  270. 
8*  1916,  P.  D.,  65. 


94  RECENT   PROBLEMS   IN  ADMIRALTY   JURISDICTION 

The  Circuit  Court  for  the  Third  Circuit  in  the  Adriatic88 
released  the  owners  from  the  bond  given  for  the  release  of 
the  vessel  prior  to  the  formal  suggestion  by  the  British  Am- 
bassador, even  though  the  libel  was  brought  in  personam 
against  the  owners  as  well  as  in  rem  against  the  ship.  It  is 
submitted  that  the  ruling  on  the  release  of  the  owner's  bond 
in  the  Luigi  Case  is  incorrect. 

88258  Fed.  Rep.,  902  (1919). 


CHAPTER  III 

JURISDICTION  OVER  FOREIGN  PRIVATE  MERCHANT  VESSELS 
AND  SEAMEN 

The  jurisdiction  which  the  courts  of  one  country  may  exer- 
cise over  the  private  merchant  vessels  of  another  is  primarily 
a  question  falling  within  the  field  of  international  law  and 
comity,  but  the  establishment  of  the  correct  rules  for  the  de- 
termination of  jurisdiction,  in  any  one  case,  is  peculiarly 
important  for  the  courts  of  admiralty,  for  most  frequently 
are  the  Federal  District  Courts  called  upon  to  determine 
whether  they  have  jurisdiction  in  causes  affecting  foreign 
merchant  vessels  and  seamen.  Our  great  shipping  centers 
are  daily  crowded  with  foreign  merchantmen,  manned  with 
foreign  crews,  and  flying  a  foreign  flag.  This  very  fact  im- 
mediately suggests  a  conflict  of  national  jurisdiction,  for,  is 
it  to  be  supposed  that  the  right  to  fly  a  foreign  flag  carries 
with  it  no  significance  ?  Does  this  flag  become  a  mere  orna- 
ment at  the  mast  head  when  the  ship  is  within  the  territorial 
waters  of  a  foreign  nation  ? 

The  fundamental  principle  of  sovereignty  declares  that  the 
jurisdiction  of  every  independent  nation  is  absolute  and  ex- 
clusive and  that  it  extends  to  all  the  territorial  waters.  All 
vessels  and  individuals  within  these  limits  are  prima  facie 
subject  to  the  jurisdiction  of  the  sovereign  state.  However, 
in  the  course  of  international  relationship  and  commerce  each 
nation  has  either  by  implication,  custom,  treaty,  or  comity 
agreed  to  certain  exceptions  in  favor  of  the  sovereignty  of 
foreign  nations. 

Each  exception  must  be  derived  from  the  actual  or  implied 
consent  of  the  former.1  Not  every  exception  made  by  a 
country  results  in  a  complete  denial  of  all  jurisdiction  over 
the  matter  or  thing,  for  were  this  so  there  would  be  no  con- 
flict. In  the  large  number  of  cases  it  is  found  that  the  abso- 

1The  Exchange,  7  Cratich,  116. 

95 


96          RECENT  PROBLEMS  IN  ADMIRALTY  JURISDICTION 

lute  sovereignty  has  been  withheld  only  in  so  far  as  to  recog- 
nize a  concurrent  power  residing  in  the  foreign  nations. 
Thus  there  are  at  times  two  or  more  national  jurisdictions 
which  may  take  cognizance  of  a  suit  and  the  actual  assertion 
of  this  right  is  frequently  a  matter  of  judicial  discretion  to 
be  determined  by  the  Admiralty  judges. 

A  merchant  vessel  may  find  itself  in  one  of  three  situations. 
Either  it  is  in  a  port  or  territorial  waters  of  its  own  country, 
on  the  high  seas,  or  in  foreign  territorial  waters.  No  ques- 
tion arises  over  ships  in  the  first  category.  It  is  with  the  last 
two  that  we  must  deal.  But  before  entering  into  the  prob- 
lems of  jurisdiction  and  legislation  over  foreign  private  ves- 
sels it  is  necessary  to  inquire  into  certain  opinions  which  have 
been  advanced  as  to  the  inherent  character  of  ships  them- 
selves, and  especially  what  is  known  as  the  territoriality  of 
ships. 

The  Territoriality  of  Ships 

When  a  vessel  sails  from  its  home  shores  and  passes  be- 
yond the  three-mile  limit  it  is  then  floating  upon  waters  which 
are  subject  to  the  jurisdiction  of  no  nation.  It  is  undoubt- 
edly natural  for  the  country  to  continue  to  assert  jurisdiction 
over  the  ship  and  matters  arising  on  board  while  upon  the 
open  sea,  but  upon  what  theoretical  ground  this  jurisdiction 
exists  is  subject  to  considerable  difference  of  opinion.  One 
of  the  most  commonly  asserted  doctrines  is  that  the  vessels 
of  a  nation  are  to  be  regarded  as  floating  portions  of  the 
country  upon  which  they  depend.  Since  every  government 
is  always  interested  in  and  dependent  upon  its  foreign  com- 
merce to  a  greater  or  less  extent  and  usually  derives  a  large 
portion  of  its  wealth  therefrom,  it  has  been  customary  for 
all  maritime  nations  to  extend  in  every  way  the  protection  of 
their  laws  and  administration  to  the  vessels  flying  the  national 
flag.  They  have  repeatedly  viewed  with  disfavor  and 
guarded  with  jealousy  against  any  loss  of  jurisdiction  over 
their  vessels  by  reason  of  the  assertion  of  exclusive  juris- 
diction by  a  foreign  nation.  Whenever  controversies  have 


JURISDICTION  OVER  FOREIGN  VESSELS  97 

arisen  in  such  matters,  the  governments  complaining  have 
found  it  most  convenient  to  assert  this  doctrine  of  terri- 
torially, and  indeed  our  own  public  papers  contain  numerous 
statements  of  it  in  varying  forms.2 

Mr.  Webster  has  probably  gone  as  far  as  any  American 
statesman  in  arguing  for  a  right  of  exemption  from  local 
jurisdiction.  In  his  correspondence  with  Lord  Ashburton 
he  argued  that  slaves,  so  long  as  they  remained  on  board  an 
American  vessel  in  English  waters,  did  not  fall  under  the 
operation  of  English  law.  Thus  he  asserted  the  general  rule 
to  be  in  favor  of  the  jurisdiction  of  the  state  to  which  the 
vessel  belongs,  deviations  from  this  general  principle  being 
exceptions.  The  burden  of  asserting  and  proving  them 
must  fall  upon  the  local  powers  where  they  seek  to  enforce 
the  supremacy  of  local  laws.8 

And  again  (August  8,  1842),  writing  to  the  same  person 
with  reference  to  impressment,  he  says : 

Every  merchant  vessel  on  the  seas  is  rightfully  considered  as  part 
of  the  territoriality  of  the  country  to  which  it  belongs.  The  entry 
therefore  into  such  vessel,  being  neutral,  by  a  belligerent,  is  an  act 
of  force,  and  is  prima  facie  a  wrong,  a  trespass,  which  can  be  justi- 
fied only  when  done  for  some  purpose  allowed  to  form  a  sufficient 
justification  by  the  law  of  nations. 

Hall,  in  his  work  on  International  Law,4  traces  the  doctrine 
of  territoriality  back  to  the  "  Exposition  des  Motifs  "  of  the 
Prussian  Government  in  1752.  Courts  and  statesmen  adher- 
ing to  the  theory  have  pointed  to  Vattel.5 

Nevertheless,  the  modern  practice  of  nations  so  limits  this 
theory  that  it  will  not  always  stand  the  test  of  circumstances. 
The  extension  of  this  doctrine  to  its  logical  end  would  result 
in  a  denial  of  jurisdiction  in  all  cases  over  foreign  merchant 
vessels.  But  this  is  not  so,  for  such  ships  do  become  subject 
to  local  jurisdiction  in  foreign  ports  in  a  great  number  of 

2  Mr.  Evarts  to  Mr.  Welsh,  Minister  to  England,  For   Rel     1870 
435,  No.  328,  July  11,  1879. 

3  Mr.  Webster,  Sec.  of  State,  to  Lord  Ashburton,  Aug    i    1842 
Webster's  Works,  VI,  303,  306. 

4 Hall,  Int.  Law,  ist  ed.,  p.  208. 
6  Book  i,  chap.  19,  sec.  216. 


98          RECENT   PROBLEMS   IN  ADMIRALTY   JURISDICTION 

ways  and  in  fact  their  territoriality  there  is  denied,  as  will  be 
seen.  The  theory  breaks  down,  for  if  a  merchant  vessel  is 
part  of  the  territory  of  her  state  she  must  always  be  a  part 
of  it.6  Hall  declares  the  fiction  as  untenable : 

The  territoriality  of  a  vessel  is  a  metaphorical  conception ;  and  be- 
fore a  metaphor  can  be  employed  as  an  operative  principle  of  law, 
it  must  be  proved  to  have  been  so  adopted  into  Taw  as  to  render  its 
use  necessary,  or  at  least  reasonable.7 

The  French  Courts  and  French  authorities,  although  rec- 
ognizing the  fact  of  extra-territorial  rights,  do  not  ascribe 
the  privileges  which  flow  from  it  to  the  same  sources.  They 
hold  to  the  view  that  the  crew  of  a  merchant  ship  lying  in  a 
foreign  port  is  unlike  a  collection  of  isolated  strangers  travel- 
ing in  the  country ;  that  it  is  an  organized  body  of  men,  gov- 
erned internally  in  conformity  with  the  laws  of  their  state, 
enrolled  under  its  control,  and  subordinated  to  an  officer  who 
is  recognized  by  the  public  authority.8  In  the  navigation  of 
the  ship,  the  crew  and  the  ship  are  inseparable,  and  the  busi- 
ness engaged  in  by  the  two  affects  the  commercial  interests 
of  a  nation  as  a  whole.  Thus  it  is  clothed  with  a  certain 
national  atmosphere  which  still  surrounds  it  when  in  the 
waters  of  another  state.  One  of  the  results  is  that  the  courts 
have  no  jurisdiction  over  civil  suits  between  foreigners,  ex- 
cept in  certain  specified  cases.9 

The  rule  is  stated  by  Wheaton  thus : 

It  is  the  duty  as  well  as  the  right  of  every  nation  to  administer 
justice  to  its  own  citizens ;  but  there  is  no  uniform  and  constant  prac- 
tice of  nations,  as  to  taking  cognizance  of  controversies  between  for- 
eigners. It  may  be  assumed  or  declined,  at  the  discretion  of  each 
state,  guided  by  such  motives  as  may  influence  its  judicial  policy.10 

Hershey,11  commenting  upon  the  attitude  of  the  govern- 
ment of  France,  says: 

This  so-called  "  French  rule "  is,  however,  a  very  convenient  and 
desirable  practice  from  the  standpoint  of  commercial  interests,  and 
deserves  the  heartiest  commendation  and  support. 

6  Manning,  276. 

T  Hall',  Int.  Law,  p.  209. 

8  Ortolan.  Diplomatic  de  la  Mer,  pp.  228-229. 

9  Vattel,  Book  2,  chap.  8,  sec.  103,  Ed.  of  Pradier-Fodere. 

10  Wheaton,  Elements  of  International  Law,  Part  2,  chap.  2,  div. 
3,  sec.  19. 

11  Essentials  of  International  Public  Law,  p.  222. 


JURISDICTION   OVER  FOREIGN  VESSELS  99 

The  Supreme  Court  of  the  United  States  has  adopted  a 
qualified  theory  of  territoriality.  It  is  usually  found  in  some- 
what the  following  form :  "  It  is  undoubtedly  true  that  for 
some  purposes  a  foreign  ship  is  to  be  treated  as  foreign  terri- 
tory." 12  In  a  very  recent  case13  the  same  Court  has  said : 

Equally  unallowable  is  the  contention  that  a  ship  of  American 
registry  engaged  in  foreign  commerce  is  a  part  of  the  territory  of 
the  United  States  in  such  a  sense  that  men  employed  on  it  can  be 
said  to  be  "  laboring  in  the  United  States  "  or  "  performing  labor  in 
this  country."  It  is  of  course  true  that  for  the  purposes  of  jurisdic- 
tion a  ship,  even  on  the  high  seas,  is  often  said  to  be  a  part  of  the 
territory  of  the  nation  whose  flag  it  flies.  But  in  the  physical  sense 
this  expression  is  obviously  figurative  .  .  .  and  to  expand  the  doctrine 
to  the  extent  of  treating  seamen  employed  on  such  a  ship  as  work- 
ing in  the  country  of  its  registry  is  quite  impossible. 

Moore  calls  the  doctrine  metaphorical  and  says  that  the 
jurisdiction  of  the  nation  to  which  the  merchant  vessel  be- 
longs is  quasi-territorial.14  It  is  probably  for  a  lack  of  a 
better  and  more  exact  theory  on  which  to  establish  the  juris- 
dictional  right  of  the  home  nation  to  take  cognizance  of 
causes  arising  on  merchant  vessels  that  our  courts  for  some 
purposes  treat  these  ships  as  if  they  were  parts  of  the  terri- 
tory of  foreign  nations.  As  long  as  there  is  no  possible  con- 
flict of  jurisdictions  the  strict  theory  of  territoriality,  al- 
though false,  is  harmless.  Indeed,  for  such  a  matter  as 
births  upon  the  high  seas,  it  very  conveniently  serves  its  pur- 
pose. But  its  failure  as  a  universal  doctrine  is  no  better 
exposed  than  in  the  law  and  practice  of  criminal  jurisdiction 
over  foreign  vessels. 

Criminal  Jurisdiction  over  Foreign  Vessels. — One  of  the 
three  great  classes  of  functions  of  the  District  Courts  in  the 
exercise  of  their  admiralty  jurisdiction  is  to  sit  as  a  Criminal 
Court,  in  which  are  tried  and  punished  those  maritime  of- 
fences over  which  the  acts  of  Congress  have  given  them  juris- 
diction. The  power  of  the  Federal  Government  to  provide 
for  the  punishment  of  crimes  and  offences  committed  on  the 

12  Patterson  vs.  Bark  Eudora,  190  U.  S.,  169,  176. 
3  Scharrenberg  vs.  Dollar  SS.  Co.,  245  U.  S.,  122. 
14  Moore,  Digest  of  International  Law,  vol.  i,  sec.  174,  p.  930. 


IOO        RECENT   PROBLEMS   IN   ADMIRALTY   JURISDICTION 

high  seas  or  in  any  waters  within  the  admiralty  and  maritime 
jurisdiction  of  the  United  States  is  derived  from  the  clause 
of  the  Constitution  granting  jurisdiction  to  the  Federal 
Courts  in  Admiralty  matters.  The  District  Court  has  juris- 
diction to  try  all  offences  thus  provided  for  which  are  not 
capital.15 

On  the  High  Seas. — It  is  well  settled  that  neither  state  nor 
federal  criminal  laws  of  the  United  States  will  extend  to  for- 
eign merchant  vessels  on  the  high  seas.  By  this  is  meant  that 
the  courts  have  never  construed  a  criminal  law,  providing  for 
the  punishment  of  crime  committed  on  the  high  seas,  to  apply 
to  any  other  than  American  vessels.  However,  the  statement 
that  Congress  possesses  the  power  to  go  further  and  to  au- 
thorize the  punishment  of  parties  for  offences  committed  on 
the  high  seas  without  reference  to  their  nationality,  or  that  of 
the  vessel  on  which  the  same  are  committed,  if  they  shall 
thereafter  be  found  or  come  within  the  United  States  has 
been  definitely  stated  in  United  States  vs.  Lewis16  (1888), 
by  the  District  Court  of  Oregon.  The  Court  based  its  au- 
thority for  the  statement  on  this  opinion  of  Chief  Justice 
Marshall  in  United  States  vs.  Palmer : 17 

The  question,  whether  this  act  extends  farther  than  to  American 
citizens,  or  to  persons  on  board  American  vessels,  or  to  offences 
committed  against  citizens  of  the  United  States,  is  not  without  its 
difficulties.  The  Constitution  having  conferred  on  Congress  the 
power  of  defining  and  punishing  piracy,  there  can  be  no  doubt  of 
the  right  of  the  legislature  to  enact  laws  punishing  pirates,  although 
they  may  be  foreigners,  and  may  have  committed  no  particular  of- 
fence against  the  United  States.  The  only  question  is,  has  the  legis- 
lature enacted  such  a  law?  Do  the  words  of  the  act  authorize  the 
courts  of  the  union  to  inflict  its  penalties  on  persons  who  are  not 
citizens  of  the  United  States,  nor  sailing  under  their  flag,  nor  offend- 
ing particularly  against  them? 

It  must  be  remembered  that  this  opinion  was  given  in  a 
.case  involving  the  power  of  Congress  to  punish  piracies  on 
the  high  seas  as  offences  against  the  law  of  nations.18  The 

15  Benedict,  Admiralty,  4th  ed.,  p.  262,  sec.  599. 

16  36  Fed.  R.,  449- 

17  3  Wheat.,  630. 

18  Piracy  as  an  offence  is  justiciable  in  the  courts  of  any  county; 
cf.  U.  S.  vs.  Holmes,  5  Wheaton,  412. 


JURISDICTION  OVER  FOREIGN  VESSELS  IOI 

Supreme  Court  would  not  construe  the  Act  in  question  to  be 
applicable  to  offences  occurring  on  the  high  seas  in  foreign 
vessels. 

Nor  would  the  Circuit  Court  in  the  United  States  vs. 
Kessler19  construe  the  Act  of  May  15,  1820,  so  as  to  give  it 
jurisdiction  to  try  and  punish  a  foreigner  for  an  offence  com- 
mitted at  sea  in  a  foreign  vessel.  The  Court  said : 

It  is  easy  to  see  that  this  might  get  us  into  difficulties  with  other 
nations,  who  may  not  choose  that  we  should  hang  their  subjects  by 
the  mode  of  trial  and  sentence  of  our  tribunals,  for  offences  on 
board  their  own  ships  under  their  authority  and  protection.  .  .  . 
Questions  and  difficulties  of  this  sort  are  avoided  by  confining  our 
cognizance  of  offences  on  the  high  seas  to  our  own  ships,  leaving 
other  nations  to  take  care  of  their  own. 

Both  of  these  cases  do  acknowledge  the  power  as  one  which 
Congress  possesses  but  which  it  has  not  exercised.20 
Whether  the  right  of  the  Federal  Government  to  punish 
piracies  is  the  limit  of  this  possible  jurisdiction,  or  whether 
other  crimes  inherently  against  the  law  of  nations  and  not 
against  any  one  particular  state  are  included  within  this 
power,  is  a  point  which  does  not  bear  upon  the  present  dis- 
cussion. 

However,  on  the  principle  that  the  legislative  and  judicial 
powers  of  a  state  extend  to  the  punishment  of  all  offences 
against  its  municipal  laws  by  its  subjects  or  citizens  where- 
soever committed,  even  within  the  geographical  limits  of 
another  nation,  it  is  competent  for  the  United  States  courts 
to  entertain  jurisdiction  over  a  crime  committed  by  an  Ameri- 
can citizen  on  a  foreign  vessel  on  the  high  seas.21  In  most 

19  i    Baldwin,   15    (1829). 

20  The  fifth  section  of  the  Act  of  March  3,  1819  (in  force  for  one 
year),  did  provide  "  That  if  any  person  or  persons  whatsoever,  shall, 
on  the  high  seas,  commit  the  crime  of  piracy,  as  defined  by  the  law 
of  nations,   and   such   offender   or    offenders   shall,    afterwards   be 
brought  into  or  found  within  the  United  States,  such  offender  or 
offenders  shall,  upon  conviction  thereof,  before  the  circuit  court  of 
the  United  States  for  the  district  into  which  he  or  they  may  be 
brought,  or  in  which  he  or  they  shall  be  found,  be  punished  with 
death." 

21  Bishop,  Criminal  Law,  Book  2,  chap,  vi,  sec.  117;  Moore,  Digest 
Int.  Law,  vol.  i,  p.  933. 


IO2        RECENT  PROBLEMS   IN  ADMIRALTY  JURISDICTION 

instances  this  jurisdiction  will  not  be  insisted  upon  especially 
where  the  law  governing  the  locus  of  the  crime  is  in  conflict. 
But  Mr.  Bayard,  as  Secretary  of  State,  has  said  that  the  right 
to  insist  upon  it  "  is  a  matter  in  which  no  other  nation  has 
the  right  to  interfere." 22 

In  an  opinion  of  Mr.  Justice  Story  in  United  States  vs. 
Davis23  it  is  apparently  assumed  that  Congress  has  power  to 
provide  for  the  punishment  of  the  crime  of  manslaughter 
committed  by  an  American  on  a  foreign  vessel  in  the  harbor 
of  the  country  of  that  vessel  although  the  decision  was  to  the 
effect  that  the  Act  of  1790,  Chapter  36,  Section  12,  did  not 
extend  to  such  an  offence. 

In  Territorial  Waters  of  the  United  States. — Every  state 
claims  to  exercise  jurisdiction  over  its  own  merchant  vessels 
wherever  they  are,  and  even  when  they  are  in  the  waters  of 
another  state.24  Thus  a  crime  committed  on  a  foreign  mer- 
chantman in  a  port  of  the  United  States  or  in  the  territorial 
waters  thereof  is  properly  cognizable  in  the  courts  of  that 
foreign  country.  The  United  States  has  asserted  and  exer- 
cised this  right  against  the  Dominion  of  Canada  in  the  case 
of  United  States  vs.  Rodgers,25  in  which  the  District  Court 
was  held  to  have  jurisdiction  of  an  assault  taking  place  on  an 
American  vessel  in  the  Detroit  River  within  the  territorial 
limits  of  Canada.  The  British  Admiralty  Courts  have  also 
assumed  jurisdiction  in  similar  cases.26 

Of  primary  interest  is,  however,  the  jurisdiction  which  the 
Federal  Courts  have  over  crimes  occurring  on  a  foreign  ves- 
sel and  by  foreigners  while  the  ship  is  in  a  port  of  the  United 
States.  (It  must  be  remembered  that  the  actual  jurisdiction 
of  the  Federal  Courts  is  entirely  dependent  on  statute.  The 
amount  of  possible  jurisdiction  they  may  be  invested  with  by 

22  To  Mr.  Connery,   Charge  at  Mexico,  Nov.   I,  1887,  For.   Rel. 
(1887),  754- 

23  2  Sumner,  482  (1837). 

24Wheaton,  Internatl.  Law,  4th  ed.,  p.  168. 

25  150  U.  S.,  249;  cf.  also  the  case  of  U.  S.  vs.  Bennett,  3  Hughes, 
466;  same  right  asserted  against  France. 

26  Reg.  vs.  Anderson,  11  Cox,  C  C,  198. 


JURISDICTION  OVER  FOREIGN  VESSELS  103 

Congress  in  cases  involving  foreigners  and  foreign  ships  is 
largely  governed  by  principles  of  international  law.)  In  the 
absence  of  any  treaty  or  convention,  the  United  States  has 
absolute  jurisdiction  over  all  such  crimes.  When  a  foreign 
vessel  enters  a  port  of  this  country  it  must  obey  the  laws, 
and  as  said  in  the  Exchange,  the  persons  on  such  foreign 
ships  "owe  temporary  and  local  allegiance"  and  are  amen- 
able to  the  jurisdiction. 

On  the  other  hand,  by  convention  and  by  comity,  it  has 
come  to  be  generally  understood  among  civilized  nations  that 
all  matters  of  discipline  and  all  things  done  on  board  which 
affect  only  the  vessel  or  those  belonging  to  her,  and  do  not 
involve  the  peace  or  dignity  of  the  country,  or  the  tranquillity 
of  the  port,  should  be  left  by  the  local  government  to  be  dealt 
with  by  the  authorities  of  the  nation  to  which  the  vessel 
belongs. 

Thus  foreign  vessels  in  port  are  at  the  same  time  subject 
to  two  concurrent  systems  of  law,  one  of  which  may  in  part 
have  been  temporarily  surrendered.  But  the  right  to  resume 
jurisdiction  nevertheless  exists  and  might  be  assumed  on  due 
notice  being  given. 

The  Supreme  Court  in  the  Wildenhus  Case27  held  that  a 
felonious  homicide  by  a  foreigner  on  a  foreign  vessel  in  port, 
occurring  entirely  below  decks,  was  by  its  nature  such  an 
offence  against  the  peace  and  tranquillity  of  the  port  that  in 
spite  of  a  convention  giving  jurisdiction  of  differences  arising 
on  Belgian  ships  between  officers  or  crew  while  at  sea  or  in 
port  to  the  consular  agents  of  that  country,  the  American 
court  was  permitted  to  take  jurisdiction  and  try  the  offender. 
Thus  the  discretion  of  the  court  as  to  whether  an  offence  does 
or  does  not  disturb  the  peace  and  tranquillity  of  the  port  will 
determine  the  jurisdiction.28 

27 120  U.  S.,  i  (1887). 

28  In  the  cases  of  the  Sally  and  the  Newton  (i  Phillimore's  Inter- 
national Law,  third  ed.,  484),  the  French  courts  held  in  their  judg- 
ments such  crimes  did  not  affect  the  peace  and  traquillity  of  the 
port.  This  nevertheless  did  not  affect  the  principle  involved;  cf. 
also  the  case  of  the  Tempest,  1859,  in  the  Court  of  Cassation, 
France. 


IO4       RECENT  PROBLEMS  IN  ADMIRALTY  JURISDICTION 

The  exemption  of  a  vessel  "can  never  be  construed  to 
justify  acts  of  hostility  committed  by  such  vessel,  her  officers 
and  crew  in  violation  of  the  law  of  nations,  against  the 
security  of  the  State  in  whose  ports  she  is  received,  or  to 
exclude  the  local  tribunals  and  authorities  from  resorting  to 
such  measures  of  self-defense  as  the  security  of  the  State  may 
require." 29 

The  question  as  to  whether  the  courts  have  jurisdiction 
over  crimes  committed  on  foreign  vessels  by  foreigners  at 
the  time  the  ship  was  passing  through  the  territorial  waters 
of  the  United  States  on  a  voyage  to  another  country  is  subject 
to  a  considerable  difference  of  opinion.  The  attitude  of  the 
International  Law  Association  and  the  Institute  of  Interna- 
tional Law  is  that  there  is  a  right  of  innocent  passage  within 
the  three-mile  limit  and  that  crimes  committed  on  foreign 
ships,  so  passing,  on  persons  or  things  on  board  are  without 
the  jurisdiction  of  the  neighboring  country  unless  they  vio- 
late its  rights  or  laws.  And  Halleck  says  that  a  foreign  ship 
passing  through  the  littoral  seas  "  is  bound  to  respect  the  mili- 
tary and  police  regulations  adopted  by  the  state  for  the  safety 
of  its  territory.  .  .  .  The  vessel  in  other  respects  is  as  free 
as  if  it  were  on  the  high  seas."30  Hall,  however,  takes  a 
different  view.  He  says :  "  There  is  no  reason  for  any  dis- 
tinction between  the  immunities  of  a  ship  in  the  act  of  using 
its  right  of  innocent  passage  and  of  a  ship  at  rest  in  the 
harbors  of  the  state," 31  and  that  the  local  state  must  be  held 
to  preserve  its  territorial  jurisdiction  in  so  far  as  it  chooses 
to  exercise  it  over  the  passing  ships  and  those  on  board  as 
fully  as  over  ships  and  persons  in  other  parts  of  its  territory. 

The  leading  case  on  this  point  is  that  of  the  Franconia,82 
in  which  the  majority  of  the  English  judges  held  that  the 
court  in  the  absence  of  a  statute  did  not  have  jurisdiction  of 
a  manslaughter  committed  by  a  German  on  a  German  vessel 

29  The  Carlo  Alberto ;  cf .  al'so  Wheaton,  Int.  Law,  4th  ed.,  p.  168. 

30  Halleck,  International  Law,  third  ed.,  vol.  i,  p.  157. 

31  Hall,  International  Law,  pp.  169-170. 

32  Regina  vs.  Keyn,  2  L.  R.,  Exchequer  Div.  (1876-1877),  p.  63. 


JURISDICTION  OVER  FOREIGN  VESSELS  105 

passing  within  three  miles  of  the  shore  of  England.  Two  of 
these  justices  held  that  Parliament  could  not,  on  principles  of 
international  law,  apply  English  criminal  law  to  such  a  case 
arising  in  littoral  waters.  A  very  strong  dissent  was  entered 
on  the  ground  that  the  sea  within  three  miles  of  the  coast  of 
England  was  part  of  the  territory  of  England ;  that  the  Eng- 
lish criminal  law  extended  over  those  limits ;  and  the  admiral 
formerly  had,  and  the  Central  Criminal  Court  then  had,  juris- 
diction to  try  offences  there  committed  although  on  board 
foreign  ships. 

The  only  American  case  which  seems  to  uphold  the  dissent 
in  the  Franconia  Case  is  that  of  United  States  vs.  Smiley,83 
which  seems  to  recognize  the  criminal  jurisdiction  of  the 
neighboring  country  over  the  littoral  sea.34 

Although  it  cannot  be  said  that  any  established  principle  in 
international  law  has  been  determined  upon  in  this  matter,  it 
is  probably  true  that  the  great  weight  of  authority  is  against 
the  independence  of  private  merchantmen  in  transit  through 
the  territorial  waters  of  another  state. 

Civil  Jurisdiction  over  Foreign  Vessels  and  Seamen. — 
Without  risk  of  over-emphasis,  the  general  rule  can  be  here 
again  restated.  The  jurisdiction  of  admiralty  courts  over 
foreign  merchant  vessels  in  territorial  waters  is  complete,35 
and  for  the  adjudication  of  questions,  no  foreign  power  can 
of  right  institute,  or  erect  any  court  of  judicature  of  any 
kind,  within  the  jurisdiction  of  the  United  States,  except  such 
as  may  be  warranted  by  and  are  in  pursuance  of  treaties. 
This  was  announced  by  the  Supreme  Court  in  the  case  of 
Glass  vs.  The  Betsy,36  and  it  was  definitely  stated  that  the 

33  6  Sawyer,  640. 

34  Cf .  "  Jurisdiction  over  Foreign  Ships,"  Mich.  Law  Rev.,  vol.  ii, 
347. 

85  The  Howard,  18,  Howard,  231;  The  Exchange,  7  Cranch,  116; 
Benedict,  Admiralty,  p.  151 ;  Moore,  Digest  of  Int.  Law,  vol.  ii,  p. 
272. 

36  3  Dallas,  6  (1794).  In  Ellis  vs.  Mitchell  (1874)  the  Supreme 
Court  of  Hongkong  held  that  the  American  Consul  could  not  settle 
a  dispute  as  to  seamen's  wages  in  the  absence  of  express  authority 
under  treaty.  Scott's  Cases,  234. 


IO6        RECENT   PROBLEMS   IN  ADMIRALTY   JURISDICTION 

admiralty  jurisdiction  which  had  been  exercised  in  the  United 
States  by  the  Consuls  of  France  in  matters  affecting  the  in- 
ternal order  and  discipline  on  French  vessels,  not  being  based 
on  a  treaty,  was  unwarranted  and  not  of  right. 

Although  the  United  States  has  the  power  to  regulate  and 
decide  disputes  between  the  crew  and  master  or  officers  on  a 
foreign  ship  while  within  the  jurisdiction  of  the  United 
States,  it  will,  in  the  absence  of  a  Federal  Statute  and  treaty 
stipulations,  usually  refrain  from  doing  so.  It  thus  adopts 
the  French  Rule  and  declines  to  exercise  jurisdiction  over 
foreign  merchant  vessels  in  its  harbors  to  this  extent.  The 
general  statement  can  be  made  that  our  courts,  in  the  absence 
of  a  treaty  or  act  of  Congress,  are  not  bound  to  exercise 
jurisdiction  over  a  suit,  either  for  wages  or  for  an  assault 
committed,  where  the  parties  are  both  foreigners,  and  the 
contract  was  made  in  a  foreign  country,  or  the  tort  com- 
mitted on  a  foreign  ship. 

But  the  courts  may,  in  their  discretion,  take  jurisdiction 
over  internal  questions,  even  where  there  is  no  federal  law 
which  requires  the  courts  to  take  jurisdiction,  and  where 
there  is  no  treaty  covering  the  case.  They  will  take  juris- 
diction where  it  is  manifestly  necessary  to  do  so  to  prevent  a 
failure  of  justice.37  The  Admiralty  Courts  will  have  juris- 
diction over  such  suits  between  foreigners,  if  the  subject  mat- 
ter of  the  controversy  is  of  a  maritime  nature.38  In  such 
cases  it  is  the  practice  of  the  District  Courts  to  require  first 
the  consent  of  the  Consul  or  Consular  representative  of  the 
country  of  the  parties  to  the  suit.  But  the  Consul's  consent 
is  not  necessary  to  jurisdiction,  for  if  the  court  possesses 
jurisdiction  at  all,  it  must  have  had  it  originally  over  the 
subject  matter  because  the  consent  of  a  foreign  consul  or 
minister  can  not  confer  jurisdiction  on  an  American  court.39 

37  Henry,  Admiralty  Jurisdiction  and  Procedure,  pp.  96-97. 
88  Taylor  vs.  Carryl,  20  Howard,  583. 
39  Cf.  The  Golubchick,  i  W.  Rob.,  143. 


JURISDICTION  OVER  FOREIGN  VESSELS  107 

The  rule  is  well  stated  by  Mr.  Justice  Grier,  in  Gonzales 
vs.  Minor,40  as  follows : 

A  court  of  admiralty  'has  jurisdiction  in  suits  for  wages,  promoted 
by  foreign  seamen  against  foreign  vessels,  as  questions  of  general 
maritime  law.  But  the  exercise  of  such  jurisdiction  is  discretionary 
with  the  court,  and  to  be  permitted  or  withheld  according  to  circum- 
stances. The  express  consent  of  the  foreign  minister  or  consul  is 
not  essentially  necessary  to  found  such  jurisdiction.  Nevertheless, 
the  exercise  of  it  is  rather  a  matter  of  comity  than  of  duty.  Whether 
it  ought  ever  to  be  exercised  against  the  remonstrance  of  the  repre- 
sentatives of  such  foreign  nation,  we  need  not  inquire;  as  we  cannot 
foresee  all  possible  cases,  and  that  question,  is  not  before  us.  But 
when  the  court  does  entertain  such  cases  without  the  request  of  the 
representative  of  the  government,  they  will  require  the  libellants  to 
exhibit  such  a  case  of  peculiar  hardship,  injustice,  or  injury,  likely  to 
be  suffered  without  such  interference,  as  would  raise  the  presump- 
tion of  a  request,  because  it  is  in  fact  conferring  a  favor  on  such 
foreign  state.41 

An  American  sailor  on  a  British  ship  at  the  termination  of 
the  voyage  in  Boston,  and  after  his  discharge,  libeled  the 
master  in  personam  for  injury  from  imprisonment  in  a  for- 
eign jail.  The  master  was  a  British  subject,  although  domi- 
ciled in  Boston.  The  British  Consul  objected  to  the  juris- 
diction, but  this  protest  was  overruled  and  the  court  said: 
"  The  voyage  was  ended  at  this  port.  The  libellant  is  a  native 
of  the  United  States  and  here  has  his  home.  To  require  him 
to  follow  this  master  over  the  world  until  he  can  find  him  in 
a  British  port  would  practically  deprive  him  of  all  remedy. 
I  do  not  think  any  consideration  of  public  convenience  or  the 
comity  extended  by  the  Courts  of  Admiralty  of  one  country 
to  those  of  another  have  any  applicability  to  such  a  case."42 

So  also  torts  originating  within  the  waters  of  a  foreign 
power  may  be  the  subjects  of  a  suit  in  a  domestic  court.  A 
British  ship  was  damaged  by  the  negligence  of  a  New  York 

«  2  Wall.,  Jr.  348,  353- 

41  In   Ex   parte   Newman,   14  Wall.,   152    (1871).    The   Supreme 
Court  said  that  the  Foreign  Consul'  should  be  consulted  where  it  is 
practicable  but  that  "  His  consent  however  is  not  a  condition  to  juris- 
diction, but  is  regarded  as  a  material  fact  to  aid  the  court  in  deter- 
mining the  question  of  discretion  whether  jurisdiction  in  the  case 
ought  or  ought  not  to  be  exercised." 

42  Patch  vs.  Marshall,  i  Curtis,  C.  C.  R.,  452  (1853). 


108        RECENT   PROBLEMS   IN  ADMIRALTY   JURISDICTION 

corporation  while  in  Colon.  The  corporation  was  the  pro- 
prietor of  piers  at  this  place  and  through  its  negligence  in 
failing  to  remove  a  certain  sunken  obstruction  at  the  pier  the 
vessel  was  sunk  and  a  large  part  of  the  cargo  lost.  The  libel 
was  subsequently  filed  in  the  District  Court  for  the  Southern 
District  of  New  York.  The  question  of  jurisdiction  was 
taken  to  the  Supreme  Court,  which  held : 

Had  both  parties  to  the  libel  been  foreigners,  it  might  have  been 
within  the  discretion  of  the  court  to  decline  jurisdiction  of  the  case 
though  the  better  opinion  is  that,  even  under  those  circumstances  the 
court  will  take  cognizance  of  torts  to  which  both  parties  are  for- 
eigners, at  least  in  the  absence  of  a  protest  from  a  foreign  consul.43 

In  1868  a  Canadian  ship  was  libeled  in  the  District  Court 
in  Baltimore  by  a  Canadian  for  damages  for  deviation  and 
breach  of  contract  of  affreightment.  The  place  of  shipping 
and  place  of  consignment  were  foreign  ports,  and  the  whole 
ground  of  libel  was  a  matter  which  occurred  on  the  high  seas 
and  in  Wales.  The  Supreme  Court  finally  decided  that  since 
the  English  Admiralty  Courts  by  Act  of  Parliament  would 
have  had  jurisdiction  of  the  case,  the  jurisdiction  of  the 
American  court  could  be  established  and  it  would  here  ad- 
minister the  foreign  law.  Their  opinion  was  that  where  a 
lien  is  given  by  maritime  law  the  question  was  not  one  of 
jurisdiction  but  of  comity : 

In  controversies  wholly  of  foreign  origin  and  between  citizens  and 
subjects  of  the  same  foreign  country,  the  admiralty  courts  of  the 
United  States  will  not,  m  general,  entertain  jurisdiction  to  enforce 
the  maritime  lien  or  privilege  in  favor  of  shipper  or  shipowner  in  a 
case  where  the  libellant  would  not  be  entitled  to  such  a  remedy  in 
the  place  where  the  contract  was  made  or  where  the  cause  of  action 
set  forth  in  the  libel  accrued.44 

The  Effect  of  Treaty  Stipulations  on  Jurisdiction. — As  a 
general  rule  aliens  are  allowed  to  bring  suits  in  our  courts 
against  our  citizens  or  against  each  other,  where  the  subject 
matter  of  the  controversy  is  transitory  in  its  nature.  To 
some  extent,  however,  this  power  is  restricted  by  treaties 
with  foreign  nations  by  which  the  Consuls  of  those  states 

43  Panama  R.  R.  vs.  Napier  Shipping  Co.,  166  U.  S.,  280  (1897) ." 

44  The  Maggie  Hammond,  9  Wall.,  435. 


JURISDICTION  OVER  FOREIGN  VESSELS  109 

respectively  are  empowered  to  have  exclusive  charge  of  the 
internal  order  of  the  merchant  vessels  of  their  nations,  and 
to  alone  take  cognizance  of  any  differences  which  may  arise, 
either  at  sea  or  in  port,  between  the  captains,  officers  and 
crews,  without  exception,  particularly  in  reference  to  the 
adjustment  of  wages  and  the  execution  of  contracts. 

However,  it  is  usually  provided  that  this  species  of  judg- 
ment or  arbitration  shall  not  deprive  the  contending  parties 
of  the  right  they  have  to  resort  on  their  return  to  the  judicial 
authority  of  their  country. 

An  important  principle  affecting  cases  arising  under  these 
treaties  is  that  when  a  seaman,  no  matter  what  his  nationality 
may  be,  duly  enrolls  himself  as  a  member  of  the  crew  and 
signs  the  articles  of  employment  on  the  vessel,  he  becomes, 
for  the  time  being,  for  all  purposes  of  consideration  by  the 
tribunals  of  this  country  in  his  relations  to  the  ship,  a  citizen 
of  the  nation  to  which  the  vessel  belongs.  Thus  it  is  the 
nationality  of  the  vessel  and  not  of  the  crew  which  governs 
in  taking  cognizance  of  the  cause,  and  all  the  crew  are  treated 
as  of  the  same  nationality  as  the  vessel.45 

As  to  whether  the  treaties  divest  the  Admiralty  Courts  of 
jurisdiction  over  internal  matters  and  leave  the  case  to  the 
exclusive  control  of  the  consular  authorities  has  proved  a 
question  of  considerable  delicacy  for  the  courts.  As  was 
said  by  Judge  Peters,  in  an  early  case,  it  is  a  matter  of  "  too 
serious  import  to  be  rested  on  implication  alone."46  In  Ex 
parte  Newman,47  which  was  a  libel  by  Prussian  sailors  against 
a  Prussian  vessel  for  wages,  the  master  of  the  ship  set  up 
the  Prussian  Treaty,  and  the  Consul  of  Prussia  protested  the 
jurisdiction.  The  District  Court  assumed  jurisdiction  but 
was  reversed  by  the  Circuit  Court  of  Appeals  which  held 
that  there  was  no  jurisdiction  and  the  Supreme  Court  adhered 
to  this  view. 

45  Ross  vs.  Mclntyre,  140  U.  S.,  435 ;  The  Ester,  190  Fed.  Rep.,  219; 
Henry,  Admiralty  Jurisdiction  and  Procedure,  pp.  98-00;  The  Leon 
XIII.  8  Prob.  Div.,  121. 

46  The  St.  Oloff,  2  Pet.  Adm.,  433. 
*  14  Wall,  152  (1871). 


HO       RECENT  PROBLEMS  IN  ADMIRALTY  JURISDICTION 

And  in  the  Elwine  Kreplin,48  Judge  Woodruff,  in  a  libel 
in  rem  brought  by  seamen  against  a  Prussian  vessel  for 
wages,  held  definitely  that  the  treaty  required  that  the  matter 
be  left  in  the  hands  and  subject  to  the  determination  of  the 
Consul.  In  the  Belgenland,49  the  Supreme  Court  said :  "  if 
any  treaty  stipulations  exist  between  the  United  States  and 
the  country  to  which  a  foreign  ship  belongs,  with  regard  to 
the  right  of  the  Consul  of  that  country  to  adjudge  con- 
troversies arising  between  the  master  and  crew,  or  other 
matters  occurring  on  the  ship  exclusively  subject  to  the  for- 
eign law,  such  stipulations  should  be  fairly  and  faithfully 
observed." 

On  the  basis  of  the  last-named  case,  the  District  Court  for 
the  Eastern  District  of  South  Carolina  in  1911  refused  juris- 
diction, saying :  "  In  the  particular  case  before  this  court,  the 
failure  by  the  court  to  take  jurisdiction  may  work  great  hard- 
ship, but  the  possibility  of  such  consequences  is  not  for  the 
court  to  consider  if  it  be  a  matter  of  treaty."  50 

Jurisdiction  in  Questions  Communis  Juris. — Causes  of 
salvage  and  bottomry  and  collision  are  deemed  to  be  questions 
of  the  jus  gentium  and  admiralty  courts  should  and  do 
exercise  jurisdiction  as  a  matter  of  comity.  A  libel  for 
salvage  services  rendered  a  French  ship  by  the  crew  of  a 
British  vessel  came  before  the  eminent  jurist  Marshall  in 
1804.  The  services  had  been  rendered  on  the  high  seas  with 
great  peril  to  the  salvors.  Whatever  doubts  there  are  as  to 
the  jurisdiction,  said  Marshall,  "  seem  rather  founded  on  the 
idea  that  upon  principles  of  general  policy,  the  court  ought 
not  to  take  cognizance  of  a  case  entirely  between  foreigners, 
than  from  any  positive  incapacity  to  do  so.  On  weighing  the 
considerations  drawn  from  public  convenience,  those  in  favor 
of  the  jurisdiction  appear  much  to  overbalance  those  against 
it,  and  it  is  the  opinion  of  the  court  that,  whatever  doubts  may 

48  9  Blatchford,  438  (1872). 

**ii4U.  S.,  364  (1884). 

50  The  Ester,  190  Fed.  Rep.,  216,  229. 


JURISDICTION  OVER  FOREIGN  VESSELS  III 

exist  in  a  case,  where  the  jurisdiction  may  be  objected  to, 
there  ought  to  be  none  where  the  parties  assent  to  it." 51 

Thus  even  in  such  cases  the  admiralty  courts  may  decline 
to  exercise  jurisdiction,  yet  where  such  controversies  are 
communis  juris,  that  is,  where  they  arise  under  the  common 
law  of  nations,  special  grounds  should  appear  to  induce  the 
court  to  deny  its  aid  to  a  foreign  suitor  when  it  has  juris- 
diction of  the  ship  or  party  charged.  The  existence  of  juris- 
diction in  all  such  cases  is  beyond  dispute ;  the  only  question 
will  be  whether  it  is  expedient  to  exercise  it.52 

Mr.  Justice  Story  has  held,  in  the  Jerusalem,53  that  wher- 
ever a  maritime  lien  is  acquired  on  a  foreign  ship,  a  court  of 
admiralty  will  be  governed  by  the  principle  of  civil  law,  that 
the  proper  forum  in  proceedings  in  rem  is  the  locus  rei  sitae. 
He  said: 

With  reference,  therefore,  to  what  may  be  deemed  the  public  law 
of  Europe,  a  proceeding  in  rem  may  well  be  maintained  in  our  courts 
where  the  property  of  a  foreigner  is  within  our  jurisdiction. 

Salvage  is  a  question  jus  gentium,  and  materially  different  from 
the  question  of  a  mariner's  contract,  which  is  creative  of  the  par- 
ticular institutions  of  the  country.  There  might  be  good  reason, 
therefore,  for  this  court  to  decline  to  interfere  in  such  cases,  and  to 
remit  them  to  their  own  domestic  forum,  but  this  is  a  general  claim 
upon  the  general  ground  of  quantum  meruit,  to  be  governed  by  a 
sound  discretion  acting  on  general  principles  and  I  can  see  no  reason 
why  one  country  should  be  afraid  to  trust  to  the  equity  of  the  courts 
of  another  on  such  a  question  of  such  a  nature,  so  to  be  determined.5* 

A  suit  arising  out  of  collision  falls  under  the  same  rule, 
and  is  prima  facie  a  proper  subject  of  inquiry  in  any  court 
of  admiralty  which  first  obtains  jurisdiction.55 

The  leading  American  case  is  that  of  the  Belgenland.56  A 
Norwegian  and  a  Belgian  ship  collided  on  the  high  seas  and 
on  suit  for  damages  the  jurisdiction  was  contested.  The 
Supreme  Court  carefully  reviewed  all  the  circumstances  that 
usually  render  it  inexpedient  to  take  the  jurisdiction  of  con- 

51  The  Blaireau,  2.  Cranch,  240  (1804). 

52  Parsons,  Shipping  and  Admiralty,  vol.  ii,  p.  226. 

53  2  Gall,  191. 

54  Sir  William  Scott  in  The  Two  Friends,  I  Ch.  Rob.,  271,  278. 
65  The  Attualita,  238  Fed.  R.,  909  (1916). 

"H4U.  S.,  355  (1885). 


112        RECENT  PROBLEMS  IN  ADMIRALTY  JURISDICTION 

troversies  between  foreigners  in  cases  not  arising  in  the 
country  of  the  forum.  It  then  adopted  and  cited  two  opin- 
ions of  Dr.  Lushington.  The  first  was  from  the  case  of  the 
Johann  Friederich : 57 

All  questions  of  collision  are  questions  communis  juris.  .  .  .  One 
of  the  most  important  distinctions,  therefore,  respecting  cases  where 
both  parties  are  foreigners  is,  whether  the  case  be  communis  juris  or 
not.  ...  If  these  parties  must  wait  until  the  vessel  that  has  done  the 
injury  returned  to  its  own  country,  their  remedy  might  be  altogether 
lost,  for  she  might  never  return,  and,  if  she  did,  there  is  no  part  of 
the  worl'd  to  which  they  might  not  be  sent  for  their  redress. 

The  second  quotation  is  from  the  Grief swald : 58 

In  cases  of  collision,  it  has  been  the  practice  of  this  country,  and 
so  far  as  I  know,  of  the  European  States  and  of  the  United  States 
of  America,  to  allow  a  party  alleging  grievance  by  a  collision  to  pro- 
ceed in  rem  against  the  ship  wherever  found,  and  this  practice,  it 
is  manifest,  is  most  conducive  to  justice,  because  in  very  many  cases 
a  remedy  in  personam  would  be  impracticable. 

The  Supreme  Court  therefore  sustained  the  jurisdiction  in 
the  principal  case,  pointing  out  that  it  would  be  impossible  to 
remit  the  parties  to  a  home  forum,  for  since  they  were  sub- 
jects of  different  powers,  no  such  tribunal  existed.  And  as 
was  said  in  Bernhard  vs.  Greene,59  the  only  forum  "which 
is  common  to  them  both  by  the  jus  gentium  is  any  court  of 
admiralty  within  the  reach  of  whose  process  they  may  both 
be  found."  Therefore  the  law  which  the  court  taking  juris- 
diction should  apply  was  the  general  maritime  law  as  under- 
stood and  administered  in  the  courts  of  the  country  where 
the  suit  was  brought. 

The  Exercise  of  Judicial  Discretion  in  Cases  between  Bel- 
ligerents in  the  World  War 

The  whole  question  of  the  exercise  of  judicial  discretion 
in  taking  jurisdiction  of  suits  in  admiralty,  where  the  parties 
to  the  suit  were  belligerents  in  the  recent  war,  was  before  the 
Supreme  Court  in  two  important  cases.  The  first  was  the 
well-known  case  of  the  Appam.60  Suit  was  brought  by  a 

"  i  W.  Rob.,  35- 

68  i  Swabey,  430. 

69  3  Sawyer,  230,  235. 

60243  U.  S.,  125,  156  (1917). 


JURISDICTION  OVER  FOREIGN  VESSELS  113 

British  Company,  the  owners  of  the  Appam,  to  recover  pos- 
session of  the  ship  and  cargo  which  was  at  that  time  in  an 
American  port,  having  been  captured  on  the  high  seas  and 
brought  here  by  a  German  raider.  The  court  felt  that  the 
neutrality  of  the  United  States  had  been  violated  by  making 
an  American  port  a  depository  of  captured  vessels  with  a 
view  to  keeping  them  there  indefinitely.  On  the  authority 
of  Glass  vs.  Betsy  and  the  Santissima  Trinidad,  the  court 
held  that  the  basis  of  jurisdiction  was  the  violation  of  neu- 
trality "and  the  Admiralty  courts  may  order  restitution  for 
a  violation  of  such  neutrality.  In  each  case  the  jurisdiction 
and  order  rests  upon  the  authority  of  the  courts  of  the  United 
States  to  make  restitution  to  private  owners  for  violations  of 
neutrality  where  the  offending  vessels  are  within  our  juris- 
diction, thus  vindicating  our  rights  and  obligations  as  a 
neutral  people." 

Prior  to  the  entry  of  the  United  States  into  the  war,  a 
British  Corporation  sued  an  Austrian  Corporation  in  per- 
sonam  in  the  District  Court  for  the  Eastern  District  of  New 
York.  Since  England  and  Austria  were  at  war  against  each 
other  at  that  time  the  trial  court  in  exercising  its  discretion 
refused  jurisdiction.  In  addition  to  the  fact  that  both  parties 
were  aliens,  the  cause  of  action  arose  and  was  to  be  per- 
formed abroad.  The  Circuit  Court  of  Appeals  affirmed  this 
opinion  but  by  the  time  that  the  appeal  reached  the  Supreme 
Court  the  United  States  had  declared  war.  As,  in  admiralty, 
cases  are  tried  de  novo  on  appeal,  the  Supreme  Court  held 
that  a  suit  could  be  brought  in  our  courts  against  an  alien 
enemy  and  that  jurisdiction  should  not  be  declined  as  an  act 
of  discretion.  However,  owing  to  the  non-intercourse  laws, 
the  further  prosecution  of  the  cause  should  be  suspended 
until  peace  was  signed.61 

Federal  Statutes  Affecting  Foreign  Merchant  Vessels  and 

Seamen 

Along  with  the  growth  of  maritime  commerce  there  has 
been  a  development  in  the  laws  of  the  United  States  with 

61  Watts  vs.  Unione  Austriaca,  248  U.  S.,  9  (1918). 


114       RECENT  PROBLEMS  IN  ADMIRALTY  JURISDICTION 

the  object  of  improving  the  conditions  of  American  seamen 
and  of  protecting  them  against  a  large  number  of  injustices 
which  they  had  formerly  been  subjected  to.  The  usual  cir- 
cumstances surrounding  the  employment  and  discharge  of  sea- 
men had  been  notoriously  bad.  The  regulations  respecting  the 
payment  of  wages  were  harsh  and  unjust  in  many  instances, 
and  in  some  sections  the  practice  of  shanghaiing  was  carried 
on  openly.  The  seaman's  contract  was  treated  as  an  excep- 
tional one  and  he  was  usually  forced  to  carry  it  out  and  very 
stringent  laws  were  enacted  for  the  capture  and  punishment 
of  deserting  seamen.  After  the  passage  of  the  first  acts  of 
Congress  intended  to  better  these  conditions,  it  was  often 
found  that  they  in  fact  resulted  in  a  discrimination  against 
American  seamen,  so  that  in  many  instances  it  was  impossible 
for  American  seamen  to  find  employment  because  the  masters 
of  vessels  preferred  to  ship  foreign  seamen  for  their  crews 
rather  than  comply  with  the  requirements  of  the  federal 
statutes  regulating  the  employment  and  wage  contracts  of 
American  seamen.  To  obviate  this  unfortunate  result  and 
to  put  the  foreign  seamen  on  the  same  basis  as  American 
seamen,  several  of  these  so-called  Seamen's  Acts  contained 
clauses  making  stipulations  of  the  Act  applicable  as  well  to 
foreign  vessels  and  seamen  as  to  American  ships  and  seamen. 
Just  such  an  act  was  the  Seamen's  Act  of  December  21, 
iSgS,62  which  among  other  things  provided  that  any  payment 
of  wages  to  seamen  in  advance  of  the  time  when  he  had 
actually  earned  the  same  was  unlawful,  and  that  the  person 
paying  such  wages  would  be  deemed  guilty  of  a  misdemeanor 
with  punishment.  Furthermore,  the  payment  of  such  ad- 
vance wages  could  not  absolve  the  vessel  or  the  master  from 
full  payment  of  wages  after  the  same  had  been  actually 
earned,  and  that  this  advance  payment  could  not  be  set  up  as 
a  defense  to  a  libel,  suit,  or  action  for  the  recovery  of  full 
wages.  This  provision  was  made  applicable  to  foreign  ves- 
sels and  seamen. 

6*  30  Statutes,  755,  763. 


JURISDICTION  OVER  FOREIGN  VESSELS  115 

A  case  soon  arose  to  test  the  power  of  Congress  to  make 
such  legislation  applicable  to  foreign  vessels  and  crews. 
Certain  seamen  shipped  on  board  a  British  vessel  at  an 
American  port  and  the  ship  paid  twenty  dollars,  with  the 
consent  of  the  men,  on  account  of  each  of  them  to  the  ship- 
ping agent  through  whom  they  were  employed.  This  ad- 
vance payment  was  not  contrary  to  the  laws  of  Great  Britain. 
But  later  these  men  libeled  the  ship  under  the  Act  of  1898 
for  the  full  wages  earned,  contending  that  no  deduction  of 
the  advance  payment  could  be  made.  In  establishing  the 
constitutionality  of  the  Act  and  the  power  of  Congress  to 
extend  it  to  foreign  vessels  and  seamen,  the  Supreme  Court 
said: 

The  implied  consent  of  this  government  to  leave  jurisdiction  over 
the  internal  affairs  of  foreign  vessels  in  our  harbours  to  the  nations 
to  which  those  vessel's  belong  may  be  withdrawn,  and  if  this  implied 
consent  may  be  wholly  withdrawn  it  may  be  extended  upon  such 
terms  and  conditions  as  the  government  sees  fit  for  it  to  impose. 
And  ^this  legislation,  as  plainly  as  words  can  make  it,  imposes  these 
conditions  upon  the  shipment  of  sailors  in  our  harbours,  and  declares 
that  they  are  applicable  to  foreign  as  well  as  to  domestic  vessels.63 

Thus,  although  the  power  of  the  United  States  to  make 
such  legislation  applicable  to  foreign  ships  and  seamen  while 
in  a  port  of  the  United  States  is  acknowledged,  it  is  interest- 
ing to  note  that  such  extension  of  statute  law  to  foreign 
vessels  is  usually  accompanied  by  a  protest  from  the  foreign 
government.  Especially  have  the  English  and  American 
governments  exchanged  protests  on  the  occasions  of  the  en- 
actment of  reciprocal  legislation  of  this  nature. 

The  British  Merchant  Shipping  Act  of  1876,  called  the 
Plimsoll  Act,  provided  against  the  overloading  and  improper 
loading  of  foreign  ships  in  the  United  Kingdom,  and  Section 
24  imposed  penalties  on  foreign  ships  arriving  at  any  port  of 
the  United  Kingdom  during  the  winter  months  carrying  a 
deck  cargo  in  violation  of  the  Act.  The  protest  of  the  De- 
partment of  State  was  to  the  effect  that  the  right  to  impose 
penalties  on  the  master  or  owner  of  an  American  vessel,  sail- 

63  Patterson  vs.  Bark  Eudora,  190  U.  S.,  169  (1903). 


Il6        RECENT  PROBLEMS  IN  ADMIRALTY  JURISDICTION 

ing  from  a  port  of  the  United  States,  for  the  manner  in  which 
the  cargo  was  laden  or  stored,  was  of  so  doubtful  a  character 
that,  however  wise  or  beneficient  the  intent  of  the  act  might 
be,  the  Government  of  the  United  States  "  cannot  but  invite 
the  attention  of  Her  Majesty's  Government  particularly 
thereto,  before  further  steps  are  taken  in  Great  Britain  to 
enforce  obedience  to  the  law  in  these  particular  cases,  and 
before  any  steps  be  taken  toward  the  enforcement  of  fines  in 
these  or  similar  cases." 64  The  British  Government  replied, 
sustaining  the  validity  of  such  legislation,  and  asked  this  gov- 
ernment to  yield  the  matter  in  the  interests  of  humanity. 
Apparently  no  further  action  was  taken  by  the  United  States. 

In  1900  the  Supreme  Court  held  that  Section  i  of  the 
Harter  Act,65  which  prohibited  common  carriers  by  sea  from 
contracting  to  exempt  themselves  from  responsibility  for  loss 
or  damage  arising  from  negligence  in  the  proper  loading, 
stowage,  custody,  care,  or  delivery  of  property  from  or  be- 
tween ports  of  the  United  States  and  foreign  ports,  would 
include  a  British  vessel  transporting  merchandise  from 
Buenos  Aires  to  New  York,  and  such  a  vessel  and  its  owner 
were  liable  for  negligence  in  proper  loading  or  stowage  of 
the  cargo,  notwithstanding  that  a  stipulation  had  been  made 
in  the  bill  of  lading  that  the  ship  and  owner  would  be  exempt 
from  liability  for  such  negligence,  and  that  the  contract 
should  be  governed  by  the  law  of  the  ship's  flag.66 

And,  in  the  Kensington,67  the  same  court  invalidated  a  con- 
tract embodying  exceptional  stipulations  relieving  a  steam- 
ship company  from  liability  in  regard  to  loss  and  injury  to 
baggage.  This  contract  was  entered  into  at  Antwerp,  Bel- 
gium, but  the  court  refused  to  recognize  it  and  declared  it 
void  by  a  rule  of  public  policy. 

The  Germanic,  arriving  at  New  York  from  Liverpool, 
rolled  over  and  sank  at  its  pier  as  a  result  of  negligent  un- 

64_Mr.  Fish,  Secretary  of  State,  to  Sir  Edward  Thornton,  British 
Minister,  Feb.  10,  1877 ;  cf .  Moore.  Digest,  vol.  ii,  p.  282. 
65  February  13,  1893,  c.  105  1(27  Stat.,  445). 
66Knott  vs.  Botany  Mills,  179  U.  S.,  69  (1900). 
67  183  U.  S.,  263  (1902). 


JURISDICTION  OVER  FOREIGN  VESSELS  117 

loading.  She  was  libeled  for  loss  of  cargo.  Justice  Holmes 
held :  "  It  is  settled  by  repeated  decisions  that  the  Harter  Act 
will  be  applied  to  foreign  vessels  in  suits  brought  in  the 
United  States.  The  Scotland,  105  U.  S.,  24.  The  Chatta- 
hooche,  173  U.  S.,  540.  The  claimant  sets  up  the  act  and 
relies  upon  it.  Under  the  cases  it  must  take  the  burdens 
with  the  benefits,  and  no  discussion  of  the  terms  of  the  bills 
of  lading,  if  they  might  lead  to  a  greater  limitation  of  lia- 
bility, is  necessary."  68 

So  vigorous  was  the  protest  of  the  American  Government 
against  a  law  of  Venezuela  providing  that  the  ship's  papers 
of  a  foreign  vessel  while  in  a  port  of  that  country  should  be 
turned  over  to  the  custody  of  a  Venezuelan  official  the 
government  of  that  country  after  some  delay  deemed  it  best 
to  repeal  the  Act.  The  American  Secretary  of  State,  Mr. 
Frelinghuysen,  stated  in  his  protest : 

It  cannot  be  expected  that  the  United  States  will  unreservedly 
yield  to  the  authorities  of  a  foreign  state  a  measure  of  control  over 
our  vessels  in  their  ports,  which  is  not  permitted  by  our  law  to  be 
exercised  by  our  own  officers  in  our  own  ports,  over  foreign  vessels, 
except  as  a  retaliatory  measure  in  the  absence  of  reciprocity.  .  .  . 
We  do  not  seek  to  take  from  Venezuel'a  a  recognized  right  because 
we  distrust  its  exercise ;  we  simply  wish  to  retain  for  our  own  consuls, 
a  right  which  we  deem  pertains  to  them  as  the  representatives  of  our 
national  sovereignty,  and  one  which  is  claimed  and  recognized  as 
just  among  maritime  nations.69 

A  similar  protest  was  addressed  to  the  British  Government 
in  regard  to  the  Canadian  Seaman's  Act  of  1876,  which  re- 
quired that  the  shipment  of  crews  on  a  foreign  vessel  in  that 
country  should  be  made  before  a  Canadian  shipping-master. 
A  law  of  the  United  States  provides  that  all  seamen  shipped 
on  board  of  American  vessels  in  foreign  ports  should  sign 
articles  before  the  United  States  Consular  officers  there. 
Here  was  a  conflict  of  two  national  laws  and  jurisdictions. 
The  contention  of  the  State  Department  was  that  it  was  "  an 
accepted  doctrine  that  the  right  of  a  vessel  to  be  governed  in 

«8 106  U.  S,  589,  598. 

89  Mr.  Frelinghuysen,  Secretary  of  State,  to  Mr.  Baker,  Minister 
to  Venezuela,  No.  190,  Nov.  29,  1882;  cf.  Moore,  Digest,  vol.  ii,  pp. 
329-330. 


Il8        RECENT  PROBLEMS  IN  ADMIRALTY  JURISDICTION 

respect  of  her  internal  discipline  by  the  laws  and  regulations 
of  her  own  country  is  not  forfeited  by  her  entrance  into  a 
port  of  a  foreign  country."70  The  Canadian  Government 
acquiesced  in  the  American  request  and  stopped  the  enforce- 
ment of  the  Act  against  American  vessels,  but  in  doing  so  the 
British  Government  pointed  out  that  it  had  no  doubt  as  to 
the  right  of  the  Government  of  Canada  to  enforce  the  pro- 
visions of  the  Act,  the  object  of  which  was  to  restrain  the 
evils  attendant  upon  the  crimping  of  seamen  and  to  restrain 
desertion. 

Seaman's  Act  of  1915. — However,  the  Sixty-third  Congress 
was  not  apparently  impelled  by  such  motives  of  reciprocity 
as  were  evinced  in  the  action  of  the  Canadian  Government. 
On  March  4,  1915,  a  new  Seaman's  Act  was  passed.  It  was 
entitled  an  Act  to  promote  the  welfare  of  American  seamen 
in  the  merchant  marine  of  the  United  States;  to  abolish 
arrest  and  imprisonment  as  a  penalty  for  desertion  and  to 
secure  the  abrogation  of  treaty  provisions  in  relation  thereto ; 
and  to  promote  safety  at  sea.71 

Sections  4,  n,  13  and  14  are  made  applicable  to  foreign 
vessels.  Section  4  is  as  follows : 

Every  seaman  on  a  vessel  of  the  United  States  shall  be  entitled  to 
receive  on  demand  from  the  master  of  the  vessel  to  which  he  belongs 
one-half  part  of  the  wages  which  he  shall  have  then  earned  at  every 
port  where  such  vessel,  after  the  voyage  has  been  commenced,  shall 
load  or  deliver  cargo  before  the  voyage  is  ended  and  all  stipulations 
in  the  contract  to  the  contrary  shall  be  void:  Provided,  such  a  de- 
mand shall'  not  be  made  before  the  expiration  of,  nor  oftener  than 
once  in  five  days.  Any  failure  on  the  part  of  the  master  to  comply 
with  this  demand  shall  release  the  seaman  from  his  contract  and  he 
shall  be  entitled  to  full  payment  of  wages  earned.  And  when  the 
voyage  is  ended  every  such  seaman  shall  be  entitled  to  the  remainder 
of  the  wages  which  shall  then  be  due  him,  as  provided  in  section 
forty-five  hundred  and  twenty-nine  of  the  Revised  Statutes:  Pro- 
vided further,  That  notwithstanding  any  release  signed  by  any  sea- 
man under  section  forty-five  hundred  and  fifty-two  of  the  Revised 
Statutes  any  court  having  jurisdiction  may  upon  good  cause  shown 
set  aside  such  release  and  take  such  action  as  justice  shall  require: 

70  Mr.  Bayard,  Secretary  of  State,  to  Mr.  White,  Charge  at  Lon- 
don, March  i,  1889,  For.  Rel.,  1889,  447. 

71 U.  S.  Stat,  vol.  38,  Part  I,  chap.  153,  p.  1164. 


JURISDICTION  OVER  FOREIGN  VESSELS  119 

And  provided  further,  That  this  section  shall  apply  to  seamen  on 
foreign  vessels  while  in  harbors  of  the  United  States,  and  the  courts 
of  the  United  States  shall  be  open  to  such  seamen  for  its  enforce- 
ment. 

Section  1 1  provides : 

That  it  shall  be,  and  is  hereby,  made  unlawful  in  any  case  to  pay 
any  seaman  wages  in  advance  of  the  time  when  he  has  actually 
earned  the  same,  or  to  pay  such  advance  wages,  or  to  make  any 
order,  or  note,  or  other  evidence  of  indebtedness  therefor  to  any 
other  person,  or  to  pay  any  person,  for  the  shipment  of  seamen 
when  payment  is  deducted  or  to  be  deducted  from  a  seaman's  wages. 
Any  person  violating  any  of  the  foregoing  provisions  of  this  section 
shall  be  deemed  guilty  of  a  misdemeanor,  and  upon  conviction  shall 
be  punished  by  a  fine  of  not  less  than  $25  nor  more  than  $100,  and 
may  also  be  imprisoned  for  a  period  of  not  exceeding  six  months,  at 
the  discretion  of  the  court.  The  payment  of  such  advance  wages  or 
allotment  shall  in  no  case  except  as  herein  provided  absolve  the  ves- 
sel or  the  master  or  the  owner  thereof  from  the  full  payment  of 
wages  after  the  same  shall  have  been  actually  earned,  and  shall  be 
no  defense  to  a  libel  suit  or  action  for  the  recovery  of  such  wages. 
If  any  person  shall  demand  or  receive,  either  directly  or  indirectly, 
from  any  seaman  or  other  person  seeking  employment,  as  seaman,  or 
from  any  person  on  his  behalf,  any  remuneration  whatever  for  pro- 
viding him  with  employment,  he  shall  for  every  such  offense  be 
deemed  guilty  of  a  misdemeanor  and  shall  be  imprisoned  not  more 
than  six  months  or  fined  not  more  than  $500. 

That  it  shall  be  lawful  for  any  seaman  to  stipulate  in  his  shipping 
agreement  for  an  allotment  of  any  portion  of  the  wages  he  may 
earn  to  his  grandparents,  parents,  wife,  sister  or  children. 

That  no  allotment  shall  be  valid  unless  in  writing  and  signed  by 
and  approved  by  the  shipping  commissioner.  It  shall  be  the  duty  of 
the  said  commissioner  to  examine  such  allotments  and  the  parties  to 
them  and  enforce  compliance  with  the  law.  All  stipulations  for  the 
allotment  of  any  part  of  the  wages  of  a  seaman  during  his  absence 
which  are  made  at  the  commencement  of  the  voyage  shall  be  inserted 
in  the  agreement  and  shall  state  the  amounts  and  times  of  the  pay- 
ments to  be  made  and  the  persons  to  whom  the  payments  are  to  be 
made. 

That  no  allotment  except  as  provided  for  in  this  section  shall  be 
lawful.  Any  person  who  shall  falsely  claim  to  be  such  relation,  as 
above  described,  of  a  seaman  under  this  section  shall  for  every  such 
offense  be  punished  by  a  fine  not  exceeding  $550  or  imprisonment 
not  exceeding  six  months,  at  the  discretion  of  the  court. 

That  this  section  shall  apply  as  well  to  foreign  vessels  white  in 
waters  of  the  United  States,  as  to  vessels  of  the  United  States,  and 
any  master,  owner,  consignee,  or  agent  of  any  foreign  vessel  who 
has  violated  its  provisions  shall  be  liable  to  the  same  penalty  that 
the  master,  owner,  or  agent  of  a  vessel  of  the  "United  States  would 
be  for  similar  violation. 

The  master,  owner,  consignee,  or  agent  of  any  vessel  of  the  United 
States,  or  of  any  foreign  vessel  seeking  clearance  from  a  port  of 
the  United  States,  shall  present  his  shipping  articles  at  the  office  of 
clearance,  and  no  clearance  shall  be  granted  any  such  vessel  unless 
the  provisions  of  this  section  have  been  complied  with. 


I2O        RECENT  PROBLEMS  IN  ADMIRALTY  JURISDICTION 

The  leading  cases  that  have  so  far  come  before  the  courts 
have  arisen  under  the  enforcement  of  these  two  sections  of 
the  Act.  Three  very  important  questions  have  been  raised : 
First,  Did  the  Act  apply  to  advances  made  to  seamen  on 
foreign  ships  while  in  foreign  waters  ?  Second,  Did  it  apply 
to  advances  made  by  an  American  ship  in  foreign  waters? 
Third,  Did  the  Act  apply  to  the  wages  of  foreign  seamen  on 
foreign  vessels  while  in  a  port  of  the  United  States  so  as  to 
invalidate  a  contract  made  legally  abroad  and  if  so  was  such 
an  act  within  the  power  of  Congress  and  constitutional  ? 

These  two  sections  repeatedly  came  before  the  lower  Fed- 
eral Courts,  and  a  review  of  some  of  the  decisions  will  show 
what  differences  of  opinion  were  current  as  to  what  the  in- 
tention of  Congress  was  in  enacting  the  provisions  in  ques- 
tion. At  the  time  of  the  enactment  of  the  law  and  subse- 
quently it  was  the  understanding  of  a  large  number  of  people 
generally  that  this  attempt  of  Congress  was  a  flagrant  and 
intentional  piece  of  "international  bad  manners."  That  it 
involved  a  breach  of  principles  of  comity  and  that  it  was  a 
deliberate  attempt  to  force  foreign  governments  to  raise  their 
standards  and  improve  the  condition  of  foreign  seamen  on 
foreign  vessels  in  accordance  with  the  views  of  Congress  as 
to  what  these  conditions  should  be.  In  fact  the  original  bill 
was  often  attacked  on  these  grounds  by  congressmen  prior  to 
its  passage,  and  great  apprehension  was  felt  by  these  mem- 
bers that  most  serious  international  complications  would  arise 
and  even  that  the  United  States  would  be  faced  with  flat 
refusals  on  the  part  of  foreign  governments  to  comply  with 
the  law;  or  that,  in  turn,  this  government  would  be  subjected 
to  most  stringent  retaliatory  legislation  in  foreign  countries, 
so  that  the  ultimate  result  of  the  Seaman's  Act  would  be  a 
hindrance  to  American  shipping  and  a  hardship  upon  the 
seamen  themselves  for  whose  particular  benefit  the  Act  was 
expressly  drawn.72 

72  Cf .  Congressional  Record,  vol.  52,  Part  5,  Representative  Hum- 
phrey of  Washington,  pp.  4644-4655;  Senator  Root,  pp.  4738-4740; 
Senator  Burton,  pp.  4741-4743. 


JURISDICTION  OVER  FOREIGN  VESSELS  121 

The  case  of  the  Ixion73  led  the  District  Court  in  Washing- 
ton State  to  hold,  in  a  libel  by  a  British  subject  against  a 
British  vessel  for  full  payment  of  wages  after  a  demand  for 
the  payment  of  one-half  wages  then  earned  had  been  refused, 
that  as  it  was  apparently  the  intention  of  Congress  that  no 
advancement  should  be  made  to  sailors  on  foreign  vessels  for 
services  performed  within  the  ports  and  waters  under  the 
jurisdiction  of  the  United  States,  a  libel  showing  that  a  sailor 
on  a  foreign  vessel  had  earned  wages  while  in  a  port  of  the 
United  States  and  that  demand  in  accordance  with  the  fourth 
section  was  refused,  would  constitute  ground  for  a  cause  of 
action,  although  the  British  master  of  the  vessel  had  already 
paid  the  seamen  more  than  one-half  of  the  wages  earned  dur- 
ing the  entire  voyage. 

In  the  Imberhorne,74  the  District  Court  of  the  S.  D.,  Ala- 
bama took  a  much'  bolder  step.  Seamen  that  had  shipped  in 
Scotland  on  a  Russian  vessel  were  there  paid  one  month's 
pay  in  advance.  And  in  a  suit  to  recover  one-half  the  wages 
earned  on  arrival  in  a  port  of  the  United  States,  it  was  held 
that  the  court  could  not  deduct  from  the  wages  earned  the 
amount  of  advances  made  to  them  when  they  shipped,  al- 
though they  were  aliens,  serving  on  a  foreign  vessel,  and  the 
advances  were  made  in  a  foreign  country,  where  such  ad- 
vances were  lawful  and  customary.  District  Judge  Ervin 
here  felt  that  the  Seaman's  Act  of  1915  so  amended  section 
10  of  the  Dingley  Act  of  1884™  that  it  laid  down  a  rule  which 
was  binding  on  an  admiralty  court  in  passing  upon  how  one- 
half  of  the  wages  of  a  seaman  was  to  be  calculated,  that  even 
though  the  penalties  declared  by  the  act  could  not  be  applied 
to  or  enforced  against  the  vessel,  still  when  figuring  one-half 
of  the  seaman's  wages  that  had  been  earned  the  court  must 
exclude  any  advances  whether  made  in  a  foreign  jurisdiction 
or  not. 

73  237  Fed.  Rep.,  142  (Oi9i6). 

74  240  Fed.  Rep.,  830  (1917). 

75  Act  June  26,  1884,  ch.  121,  23  Stat,  53. 


122       RECENT  PROBLEMS  IN  ADMIRALTY  JURISDICTION 

A  similar  case  had  arisen  under  the  Dingley  Act.  In  that 
case,  The  State  of  Maine,76  however,  the  judge  had  held  that 
where  advances  were  made  to  the  seamen  in  a  foreign  juris- 
diction in  order  to  induce  them  to  sign,  such  advances  were 
not  included  under  the  prohibitory  clause  of  the  act,  and 
hence  such  advances  on  wages  should  be  deducted  from  the 
one-half  of  the  wages  earned  by  the  seamen. 

It  will  be  remembered  that  the  case  of  Patterson  vs.  The 
Bark  Eudora,77  in  which  the  Supreme  Court  allowed  full 
recovery  under  the  Act  of  1898,  without  any  deduction  of 
advance  payments,  only  applied  to  advance  payments  to  sea- 
men shipped  on  a  foreign  vessel  in  an  American  port. 

In  the  Belgier78  the  libellants  had  signed  at  Havre,  France, 
as  part  of  the  crew  of  the  British  ship  Belgier,  and  had 
received  at  the  time  an  advance  of  one-half  a  month's  wages. 
The  District  Court,  S.  D.,  New  York,  declared  that  the  ad- 
vance by  the  Master  of  the  British  vessel  to  the  seamen  upon 
the  signing  of  articles  in  a  foreign  port  was  binding  and  must 
be  credited  to  payments,  such  advance  being  legal  under  the 
British  law,  for  it  could  not  be  contemplated  that  the  Sea- 
man's Act  was  intended  to  apply  to  advances  made  upon 
foreign  vessels  outside  the  United  States,  but  only  to  ad- 
vances made  while  such  vessels  were  in  the  waters  of  the 
United  States.  This  case  supported  the  Ixion  Case  while  it 
absolutely  opposed  the  ruling  in  the  Imberhorne  Case. 

One  further  point  in  this  Belgier  decision  deserves  notice. 
It  was  proved  that  some  of  the  libellants  through  fear  of 
submarines  had  not  made  their  demand  for  wages  in  good 
faith  and  that  in  fact  they  had  intended  to  abandon  their 
contract  of  shipment  under  a  concerted  purpose.  Judge 
Hand  thought  that,  although  the  Seaman's  Act  had  abolished 
remedies  for  recapturing  deserters  and  allowed  a  seaman  to 
recover  full  wages  when  his  demand  for  one-half  wages  is 
not  met,  and  also  permitted  under  these  conditions  an  entire 

76  22  Fed.  R.,  733- 
™  190  U.  S.,  169. 
«  246  Fed.  R.,  966. 


JURISDICTION  OVER  FOREIGN  VESSELS  123 

release  from  his  contract,  nevertheless  it  did  not  entitle  de- 
serters to  recover  wages.  And  it  would  seem  from  this  case 
that  it  is  not  necessary  that  actual  desertion  shall  have  taken 
place;  that  mere  mala  fides  with  an  intent  to  desert  is  suffi- 
cient to  bar  recovery.79 

The  Circuit  Court  of  Appeals  for  the  Second  Circuit  had 
before  it  in  1918  the  cases  of  the  Windrush  and  the  Rhine.80 
Two  American  vessels  in  the  Port  of  Buenos  Aires  needed 
crews  and  found  it  impossible  to  get  them  except  by  agreeing 
to  pay  a  month's  wages  in  advance  because  the  "crimps" 
there  had  such  control  of  seamen  that  no  master  could  get  a 
crew  except  by  applying  to  them.  These  advance  payments 
were  made,  and  upon  arrival  at  New  York  suit  was  brought 
by  seamen  for  a  month's  pay  apiece,  as  for  so  much  wages 
wrongfully  withheld,  the  seamen  refusing  to  recognize  the 
charges  or  deductions.  The  court  below  awarded  the  amount 
claimed,  but  these  decrees  were  reversed  on  appeal  and  the 
libels  dismissed. 

The  argument  that  the  act  of  1915  was  in  its  entirety  so 
obviously  remedial  that  by  it  the  status  of  seamen  had  been 
so  radically  changed,  and  the  rigidity  of  their  engagements 
so  greatly  relaxed  that  it  must  have  been  intended  to  make 
the  statute  extraterritorially  operative  and  put  on  the  em- 
ployers of  seamen  the  cost  of  this  rascally  way  of  doing 
business,  over  which  the  country  had  no  direct  jurisdiction, 
was  not  concurred  in  by  the  Court,  which  held : 

The  remedial  and  penal  portions  of  the  part  of  the  statute  under 
consideration  cannot  be  separated ;  if  what  these  shipmasters  did  in 
Buenos  Ayres  was  not  lawful,  it  was  unlawful,  and  a  misdemeanor 
was  committed.  If  it  be  possible  now  and  in  this  country  to  enact  a 
law  making  a  crime  of  something  done  by  an  American  citizen  in  a 

79  If,  as  has  often  been  stated,  one  of  the  purposes  of  the  Act  was 
to  encourage  the  desertion  of  seamen  from  foreign  vessels  in  the 
harbors  of  the  United  States  and  thereby  to  remove  the  economic 
handicap  which  higher  wages  have  placed  on  American  shipping, 
then  it  is  doubtful  whether  the  court  was  justified  in  overriding  the 
legislative  intent  by  reading  "  good  faith  "  into  the  statute,  although 
its  action  is  no  doubt  salutary.    Cf.  Harvard  Law  Review,  vol.  31, 
p.  1169. 

80  250  Fed.  Rep.,  180. 


124        RECENT  PROBLEMS  IN  ADMIRALTY  JURISDICTION 

foreign  land  (Rex.  vs.  Sawyer,  I  C.  &  K.,  101)  every  and  the  strong- 
est presumption  is  against  such  construction  (American,  etc.,  Co.  vs. 
United  Fruit  Co.,  213  U.  S.,  347,  29  Sup.  Ct.,  511,  53  L.  Ed.,  826,  16 
Ann.  Cas.,  1047). 

In  this  particular  case  it  is  acknowledged  that  a  law  may 
not  punish  as  a  crime  an  act  lawfully  done  in  a  foreign  juris- 
diction and  that,  as  was  said  in  United  States  vs.  Freeman,81 
"  Congress  did  not  intend  to  do  anything  so  obviously  futile 
as  to  denounce  as  criminal  an  act  wholly  done  in  a  foreign 
country." 

But  it  would  seem  that  it  was  possible  to  separate  the  penal 
clause  from  the  Act  and  enforce  the  statute  civilly  in  accord- 
ance with  the  language  of  the  Act  which  seems  plainly  to 
indicate  an  intention  to  prohibit  advance  wage  payments  by 
every  American  vessel  no  matter  where  she  may  be.  No 
limitation  whatever  is  made  in  the  Act  itself  which  says 
"  every  seaman  on  a  vessel  of  the  United  States  "  and  when 
speaking  of  foreign  vessels  says  "while  in  harbors  of  the 
United  States."  The  Supreme  Court  has  certainly  extended 
the  Harter  Act  in  the  Kensington82  Case  so  as  to  make  un- 
lawful in  this  country  a  contract  entered  into  abroad  and 
which  was  lawful  there,  and  a  civil  suit  was  maintained  in 
this  country  upon  which  recovery  was  permitted  in  spite  of 
the  express  terms  of  the  foreign  contract. 

It  is  believed  that  the  act  of  the  Masters  in  Buenos  Aires 
characterized  as  "  vile  "  in  the  opinion  was  just  as  much  void 
by  public  policy  as  the  contract  of  limitation  of  liability  for 
negligence  that  was  entered  into  in  Antwerp,  Belgium,  in  the 
Kensington  Case. 

That  the  same  attitude  is  taken  in  the  British  courts  is 
evident  in  the  case  of  Kaufman  vs.  Gerson,83  where  a  con- 
tract, made  in  France,  and  valid  by  the  laws  of  France,  was 
refused  enforcement  in  an  English  Court  because  of  certain 
duress  in  contravention  of  an  essential  principle  of  justice  or 
morality.  And  Westlake  says : 84 

81 239  U.  S.,  117. 

82 183  U.  S.,  263  (1902). 

83  C.  A.,  1904,  i  K.  B.,  591. 

84  Private  International  Law,  third  ed.,  sec.  215,  p.  260. 


JURISDICTION  OVER  FOREIGN  VESSELS  125 

Where  a  contract  conflicts  with  what  are  deemed  in  England  to  be 
essential  public  and  moral  interests,  it  cannot  be  enforced  here,  not- 
withstanding it  may  have  been  valid  by  its  proper  law.  The  plain- 
tiff in  such  a  case  encounters  that  reservation  in  favor  of  any  strin- 
gent domestic  policy,  with  which  alone  any  maxims  for  giving  effect 
to  foreign  laws  can  be  received. 

However,  the  opinion  of  the  writer  is  negatived  by  the 
Supreme  Court  in  the  recent  case  of  Neilson  vs.  Rhine 
Shipping  Co.85  This  is  the  appeal  in  the  Rhine  Case  com- 
mented upon  above,  where  advance  payments  of  wages  were 
made  by  an  American  vessel  in  Buenos  Aires.  The  Court 
concedes  that  American  vessels  might  be  controlled  by  con- 
gressional legislation  as  to  contracts  made  in  foreign  ports 
but  holds  that  the  Seaman's  Act  did  not  extend  to  such  cases 
of  American  vessels  in  foreign  harbors.  The  majority  opin- 
Jon  (there  was  a  dissent  of  four  Justices)  was  that  the  pre- 
sumption against  the  possible  intent  of  Congress  to  extend  the 
act  to  a  case  like  this  was  so  strong  that  it  could  not  be  set 
aside  by  implication  but  would  necessitate  a  specific  require- 
ment made  in  the  statute.  Emphasis  is  laid  upon  the  crimi- 
nal aspect  of  the  legislation  as  arguing  against  any  such  in- 
tent by  Congress.  But  probably  the  chief  argument  was 
that  the  intent  could  be  imputed  to  Congress  to  adopt  a  policy 
of  declaring  illegal  foreign  contracts  legal  where  made.  The 
opinion  of  the  court  is  very  unsatisfactory  in  that  it  merely 
makes  the  statement :  "  the  same  general  considerations  as  to 
the  interpretation  of  the  statute  which  controlled  in  the  de- 
cision of  the  case  of  the  Talus  are  applicable  here  and  need 
not  be  repeated."  It  is  submitted  that  the  Talus  presents  an 
entirely  different  proposition  as  will  be  seen  below.  That 
was  a  case  involving  advance  wages  paid  in  a  British  port  by 
a  British  vessel. 

In  addition  to  the  short  statement  quoted  above,  Mr.  Jus- 
tice Day  deplores  the  fact  that  only  by  compliance  with  the 
local  custom  of  obtaining  seamen  through  agents  can  Ameri- 
can vessels  obtain  seamen  in  South  American  ports.  He 
then  says,  "we  are  unable  to  discover  that  in  passing  this 

8*248  U.  S.,  205  (1918). 


126        RECENT  PROBLEMS  IN  ADMIRALTY  JURISDICTION 

statute  Congress  intended  to  place  American  shipping  at  the 
great  disadvantage  of  this  inability  to  obtain  seamen  when 
compared  with  the  vessels  of  other  nations  which  are  manned 
by  complying  with  local  usage." 

A  point  urged,  as  showing  the  intent  of  Congress  to  limit 
the  Act  to  American  vessels  in  American  ports,  is  the  word- 
ing of  the  last  subsection  of  Section  n,  which  denies  clear- 
ance papers  to  vessels  violating  its  terms.  This  undoubtedly 
bears  considerable  weight,  and  the  eminent  Justice  is  entitled 
to  draw  his  inference  therefrom,  yet  it  is  believed  that  this 
provision  is  entirely  reconcilable  with  an  intent  of  Congress 
to  deal  with  advances  made  by  American  ships  in  foreign 
harbors,  as  showing  only  a  further  means  offered  to  enforce 
the  statute  here  in  the  United  States  where  direct  jurisdiction 
over  such  vessels  is  exercisable. 

It  is  pointed  out  by  the  dissenting  Justices  that  the  ques- 
tion, where  or  under  what  circumstances  the  advances  were 
made,  are  not  factors  in  judgment: 

They  are  the  mere  accidents  of  the  situation  and  if  they  reach 
the  importance  and  have  the  embarrassment  depicted  by  counsel',  the 
appeal  must  be  made  to  Congress,  which  no  doubt  will  promptly  cor- 
rect the  improvidence,  if  it  be  such,  of  its  legislation. 

However,  it  is  not  necessary  to  continue  further ;  whatever 
opinion  is  held  as  to  the  original  intent  of  the  Act,  the  fact 
is,  this  decision  now  limits  Section  n  so  that  its  provisions 
will  not  apply  to  advances  made  in  a  foreign  port  by  an 
American  vessel. 

The  same  day  as  the  Rhine  decision,  Mr.  Justice  Day  de- 
livered the  opinion  in  the  Talus  Case.86  Here  was  raised  the 
question  whether  Section  n  applied  to  advances  made  by  a 
foreign  vessel  in  a  foreign  port.  Upon  a  demand  for  one- 
half  wages  by  seamen  of  a  British  vessel  in  an  American 
port,  the  master  deducted  certain  advances  made  to  the  men 
at  Liverpool,  England,  where  the  seamen  were  signed.  The 
claimed  deductions  resulted  in  a  libel.  The  first  question 
before  the  Supreme  Court  was  whether  Congress  intended  to 

86  248  U.  S.,  185  (1918),  Sandberg  vs.  McDonald. 


JURISDICTION  OVER  FOREIGN  VESSELS  127 

make  invalid  the  contracts  of  foreign  seamen,  so  far  as  ad- 
vance payment  of  wages  is  concerned,  when  the  contract  and 
payment  were  made  in  a  foreign  country.  The  court  was 
unable  to  find  anything  indicating  such  an  intention  and  held 
that  the  extent  of  the  application  of  the  act  to  foreign  vessels 
was  limited  by  the  very  words  of  the  statute  itself  which 
provided  that  this  section  shall  apply  to  such  vessels  "  while 
in  waters  of  the  United  States."  Emphasis  is  also  put  on 
the  criminal  provision  as  strengthening  the  presumption  that 
Congress  intended  to  deal  only  with  acts  committed  within 
the  jurisdiction  of  the  United  States. 

It  would  seem  that  the  correctness  of  this  decision  is  clearly 
borne  out  by  the  words  of  the  phrase  above  quoted,  although 
in  the  records  of  the  debate  in  the  Senate  it  was  the  belief  of 
some  senators  that  the  section  in  question  was  intended  to 
apply  to  such  a  case  as  the  Talus.  This  is  especially  seen  in 
the  attack  on  the  bill  by  Senator  Root,87  in  which  he  says: 

Unless  we  are  going  back  to  the  old  and  barbarous  days  in  which 
the  ship  of  a  friendly  nation  could  not  enter  the  port  of  another 
nation  without  being  liable  to  seizure  and  confiscation,  the  principle 
of  freedom  of  intercourse  among  civilized  people  denounces  any  at- 
tempt like  this  to  prevent — for  that  is  what  it  amounts  to — the  ships 
of  a  friendly  country  from  entering  our  ports  unless  they  will  sub- 
mit to  our  laws  controlling  their  contracts  in  their  own  home. 

The  Court  said  it  had  examined  the  proceedings  in  Con- 
gress but  that  there  was  nothing  therein  entitled  to  considera- 
tion which  required  a  different  interpretation  to  that  which 
it  put  upon  the  act  in  the  opinion.  The  same  four  Justices, 
McKenna,  Holmes,  Brandeis  and  Clark,  dissented  also  in 
this  case.  Their  dissent  was  an  attempt  to  show  that  the 
limitations  put  on  the  section  by  the  majority  were  not  war- 
ranted in  view  of  the  broad  wording  of  Section  4  and  the 
first  part  of  Section  n,  which  did  not  only  express  the  par- 
ticular relations  of  ship  and  seamen  but  expressed  the  in- 
sistent policy  of  the  United  States  which  no  private  conven- 
tions, no  matter  where  their  locality  of  execution,  could  be 
adduced  to  contravene. 

87  Congressional  Record,  vol.  52,  part  5,  p.  4739. 


128        RECENT  PROBLEMS  IN  ADMIRALTY  JURISDICTION 

Neither  opinion  doubts  the  power  of  Congress  to  legislate 
to  annul  such  foreign  contracts  as  a  condition  upon  which 
foreign  vessels  might  enter  the  ports  of  the  United  States. 
That  Congress  has  such  power  is  well  illustrated  by  the  very 
recent  decision  of  March  29,  1920,  in  the  case  of  Strathern 
Steamship  Co.  vs.  Dillon.88  In  that  case,  Dillon,  a  British 
subject,  shipped  at  Liverpool  on  a  British  vessel.  The  ship- 
ping articles  provided  that  his  wages  should  be  fixed  and 
were  made  payable  at  the  end  of  the  voyage,  which  was  not 
to  exceed  three  years.  Before  the  voyage  was  completed 
Dillon,  while  the  ship  was  in  an  American  port,  demanded 
one-half  of  the  wages  earned,  as  provided  under  the  Ameri- 
can Seaman's  Act,  and  upon  refusal  libeled  the  ship  for  the 
full  amount  of  the  wages.  His  particular  contract,  entered 
into  in  England,  had  provided  that  no  cash  should  be  ad- 
vanced abroad  on  liberty  granted  other  than  at  the  pleasure 
of  the  master.  This  was  a  valid  contract  for  the  payment  of 
wages  under  the  laws  of  England. 

But  a  unanimous  court,  by  Mr.  Justice  Day,  held  that 
Section  4  of  the  Act  was  applicable  to  such  a  case,  and  it 
rendered  void  all  such  contract  provisions  and  gave  to  foreign 
seamen  the  right  to  recover,  notwithstanding  the  contractual 
obligations  to  the  contrary. 

It  is  difficult  to  draw  a  clear  dividing  line  between  these 
recent  cases  in  the  Supreme  Court.  In  this  last  case  a  valid 
contract  by  the  law  of  the  place  of  the  contract  and  entered 
into  there  by  subjects  of  that  foreign  country  was  declared 
void  and  of  no  effect  in  an  American  court.  And  yet  it  is 
believed  that  in  the  Rhine  and  the  Talus  cases  one  of  the  chief 
grounds  of  the  refusal  to  extend  the  act  to  foreign  waters 
was  that  it  could  not  be  supposed  that  Congress  intended  to 
invalidate  foreign  contracts,  valid  where  made.  In  one  case, 
a  contract  made  in  England  to  pay  a  month's  advance  wages 
was  upheld,  while  in  this  case  a  contract,  made  in  the  same 
place,  not  to  pay  wages  until  the  end  of  the  voyage  was 

88  No.  373,  October  Term,  1919. 


JURISDICTION  OVER  FOREIGN  VESSELS  1 29 

declared  void.     In  each  case  both  parties  to  the  contract  were 
British  subjects.     And  the  Court  now  says : 

But  taking  the  provisions  of  the  act  as  the  same  are  written,  we 
think  it  plain  that  it  manifests  the  purpose  of  Congress  to  place 
American  and  foreign  seamen  on  an  equality  of  right  in  so  far  as  the 
privileges  of  this  section  are  concerned,  with  equal  opportunity  to 
resort  to  the  courts  of  the  United  States  for  the  enforcement  of  the 
Act.  .  .  .  Whether  consideration  for  contractual  rights  under  en- 
gagements legally  made  in  foreign  countries  would  suggest  a  differ- 
ent course  is  not  our  province  to  inquire.  It  is  sufficient  to  say  that 
Congress  has  otherwise  declared  by  the  positive  terms  of  this  enact- 
ment, and  if  it  had  authority  to  do  so,  the  law  is  enforceable  in  the 
courts. 

The  authority  of  Congress  to  enact  such  legislation  is 
sustained  by  the  weight  of  the  Eudora  Case,  which  has  been 
quoted  above. 

These  cases  have  involved  entirely  matters  of  interpreta- 
tion of  the  Act.  And  the  probable  reason  and  ground  for 
the  distinction  drawn  between  Section  4  and  Section  n  is 
that  the  first  gives  the  foreign  seamen  a  right  or  privilege 
while  the  foreign  vessel  is  in  a  harbor  of  the  United  States ; 
the  second  prohibits  the  master  or  owner  from  doing  a  cer- 
tain thing  while  the  vessel  is  in  an  American  port.  A  right 
or  privilege  given  by  our  law  is  enforceable  here  no  matter 
what  is  done  in  a  foreign  jurisdiction  because  the  legislative 
power  has  in  this  case  expressly  said  so.  While  in  the  second 
case  the  territory  in  which  the  act  is  to  be  regarded  as  unlaw- 
ful is  expressly  limited  to  a  harbor  of  the  United  States,  and 
no  extension  will  be  implied  in  the  absence  of  express  pro- 
visions. In  other  words,  the  creation  of  a  right  confers 
much  broader  powers  of  jurisdiction  in  a  court  than  does  the 
declaration  of  what  shall  constitute  an  unlawful  act.  The 
forerunning  circumstances  affecting  a  right,  no  matter  in 
what  foreign  jurisdiction  such  circumstances  may  arise,  are 
under  the  control  of  the  court  if  the  claimant  sets  up  his  right 
within  the  jurisdiction  of  the  court,  and  where  the  court  de- 
rives its  power  from  the  same  source  as  the  legislature  which 
creates  the  right. 

This  was  the  attitude  of  the  British  Court  of  Appeal, 
Chancery  Division,  in  the  case  of  In  re  Missouri  Steamship 


I3O        RECENT  PROBLEMS  IN  ADMIRALTY  JURISDICTION 

Co.,89  in  which  a  shipping  contract  limiting  liability  was  void 
by  the  law  of  Massachusetts,  the  place  where  the  contract 
was  made,  but  since  it  was  valid  by  English  law  and  the  con- 
tract was  to  be  performed  partially  in  England  and  the  right 
was  set  up  in  that  country,  was  enforced. 

The  cases  in  the  Admiralty  Courts  of  the  United  States 
which  have  arisen  under  the  Seaman's  Act  have  so  far  had 
to  do  with  the  enforcement  of  Sections  4  and  n.  However, 
there  is  another  very  important  section  which  applies  to  for- 
eign vessels.  Section  13,  although  it  contains  no  express 
provision  making  it  applicable  to  foreign  ships  as  is  the  case 
with  the  other  two  sections,  states  that  no  vessel  of  one  hun- 
dred tons  gross  and  upward  shall  be  permitted  to  depart  from 
a  port  of  the  United  States  unless  it  has  complied  with  the 
requirements  therein  set  forth.  It  is  clear  that  this  section 
was  and  is  intended  to  include  foreign  vessels.  The  Con- 
gressional Record  contains  numerous  references  to  this  and 
direct  statements  by  those  responsible  for  the  drafting  of 
the  Act  that  Section  13  goes  beyond  American  ships  and 
applies  to  all  foreign  ships.90  Furthermore,  the  Department 
of  Commerce  has  issued  Department  Circular  No.  268,  dated 
December  14,  1915,  directing  and  informing  collectors  of 
customs,  supervising  and  local  inspectors,  and  others  that  the 
section  does  apply  to  foreign  vessels. 

Most  far  reaching  are  the  provisions  of  the  section.  In- 
deed, they  constitute,  in  effect,  the  boldest  attempt  ever  made 
by  this  nation  to  impose  burdens  on  the  ships  of  foreign 
nations.  In  the  eye  of  critics,  the  United  States  has  stepped 
far  beyond  the  bounds  of  propriety  and  international  good 
faith.  Foreign  governments  are  told  that  their  ships  shall 
not  leave  our  ports  unless  65  per  cent  of  the  deck  crew  shall 
be  of  a  rating  not  less  than  able  seamen.  The  age  and  physi- 
cal requirements  and  the  particular  kind  of  sea  service  and 

89  (C  A.,  1888),  42  Ch.  Div.,  321. 

90  Congressional  Record,  vol.  52,  Part  5 ;  In  the  House,  Mr.  Hum- 
phrey of  Washington  and  Mr.  Alexander,  pp.  4644,  4646,  4651 ;  In 
the  Senate,  Senator  Lodge,  p.  4736,  Senator  Root,  pp.  4739,  4740,  Sen- 
ator Burton,  pp.  4742,  4743,  4804,  4806. 


JURISDICTION  OVER  FOREIGN  VESSELS  131 

maritime  experience  which  are  required  in  order  to  obtain 
this  rating  of  able  seamen  are  set  forth  in  detail.  Further- 
more, no  foreign  vessel  is  to  be  permitted  to  depart  unless 
she  has  on  board  a  crew  not  less  than  seventy-five  per  cent 
of  which,  in  each  department,  are  able  to  understand  any 
order  given  by  the  officers  of  such  vessel.  And  to  cap  these 
difficulties  which  beset  the  commercial  activities  of  foreign 
vessels  in  our  ports,  the  provision  is  made  that  the  collector 
of  customs  may,  upon  his  own  motion,  and  shall,  upon  the 
sworn  information  of  any  reputable  citizen  of  the  United 
States  setting  forth  that  this  section  is  not  being  complied 
with,  cause  a  muster  of  the  crew  of  the  vessel  to  be  made  to 
determine  the  fact,  and  no  clearance  will  be  given  to  a  vessel 
failing  to  comply  with  the  provisions  of  the  Act. 

This  sworn  information  can  be  filed  at  any  time  up  to 
within  six  hours  of  departure  of  the  vessel. 

Such  then  are  the  stringent  requirements  of  this  section, 
and  which  have  aroused  intense  criticism  in  foreign  countries. 
No  cases  have  as  yet  arisen  under  this  section.  This  absence 
of  litigation  can  be  explained  by  the  fact  that  due  to  the 
exigencies  of  the  war  and  the  difficulty  of  obtaining  sufficient 
crews  to  man  the  vessels,  Section  13,  along  with  many  other 
provisions,  has  apparently  gone  by  the  board  because  of  the 
impossibility  of  enforcing  the  same  under  the  circumstances. 
Indeed  the  Department  of  Commerce  believes  that  up  to  the 
present  time  no  penalty  has  actually  been  imposed  for  the 
violation  of  the  section.91 

It  may  be  noted  that  there  is  one  salutary  consideration,  in 
that  the  collectors  of  customs  are  not  legally  required  to 
cause  an  actual  muster  of  the  crew  of  any  vessel  to  determine 

91  Special  inquiry  into  the  enforcement  of  the  section  in  the  port 
of  Baltimore,  Md.,  has  been  made.  It  is  learned  from  the  Commis- 
sioner of  Shipping  that  no  attempt  whatever  to  enforce  the  Act  has 
been  made  there,  and  that  foreign  vessels  are  given  clearance  upon 
the  certificate  of  their  respective  Consuls,  and  the  manning  and 
equipment  of  the  vessels  is  in  conformity  with  the  laws  of  the  for- 
eign country  to  which  they  belong.  He  also  believes  that  any  en- 
forcement in  the  future  will  be  impossible,  and  regards  these  pro- 
visions of  the  act  as  of  no  effect. 


132        RECENT   PROBLEMS  IN  ADMIRALTY  JURISDICTION 

whether  the  crew  complies  with  Section  13,  unless  affidavit  is 
made  by  a  reputable  citizen  that  the  section  is  being  violated. 
This  gives  the  collectors  of  customs  the  opportunity  to  shut 
their  eyes  to  non-compliance  with  the  Act. 

By  Section  14,  foreign  vessels  leaving  ports  of  the  United 
States  must  comply  with  all  the  rules  therein  prescribed  as  to 
life-saving  appliances,  their  equipment,  and  the  manning  of 
the  same.  The  history  of  this  section  dates  back  to  the 
Titanic  disaster  and  the  subsequent  demand  for  adequate 
laws  providing  standard  requirements  of  life-saving  appli- 
ances. By  reason  of  the  universal  belief  that  vessels  every- 
where should  be  governed  by  strict  laws  in  such  matters,  this 
section  has  not  been  subjected  to  the  general  attacks  which 
have  been  made  against  the  preceding  three  sections. 

Congress  well  realized  that  the  Act  was  a  step  beyond  what 
had  ever  before  been  attempted,  and  first,  that  many  par- 
ticular treaty  rights  would  be  affected  by  certain  provisions 
of  the  Act,  and  secondly,  that  questions  would  arise  in  regard 
to  foreign  vessels  which,  while  not  involving  legal  rights, 
would  involve  international  comity  and  the  established  cus- 
toms of  nations,  as,  for  instance,  the  general  rule  of  comity 
under  which  American  courts  have  refused  to  take  jurisdic- 
tion in  certain  controversies  between  masters  and  seamen. 
It  was  seen  that  important  international  considerations  would 
arise  from  the  nullification  of  contracts  made  outside  of  the 
jurisdiction  of  the  United  States  and  from  the  attempt  to 
compel  foreign  nations  to  conform  to  the  ideas  of  the  coun- 
try in  matters  relating  to  the  equipment  of  vessels  and  the 
treatment  and  qualifications  of  seamen.  Therefore,  Section 
1 6  was  written  in : 

That  in  the  judgment  of  Congress  articles  in  treaties  and  conven- 
tions of  the  United  States,  in  so  far  as  they  provide  for  the  arrest 
and  imprisonment  of  officers  and  seamen  deserting  or  charged  with 
desertion  from  merchant  vessels  of  the  United  States  in  foreign 
countries,  and  for  the  arrest  and  imprisonment  of  officers  and  sea- 
men deserting  or  charged  with  desertion  from  merchant  vessels  of 
foreign  nations  in  the  United  States  and  the  Territories  and  posses- 
sions thereof,  and  for  the  cooperation,  aid,  and  protection  of  com- 
petent legal  authorities  in  effecting  such  arrest  or  imprisonment  and 


JURISDICTION  OVER  FOREIGN  VESSELS  133 

any  other  treaty  provisions  in  conflict  with  the  provisions  of  the  Act, 
ought  to  be  terminated,  and  to  this  end  the  President  be,  and  he  is 
hereby,  requested  and  directed,  within  ninety  days  after  the  pas- 
sage of  this  Act,  to  give  notice  to  the  several'  Governments,  respec- 
tively, that  so  much  as  hereinbefore  described  of  all  such  treaties 
will  terminate  on  the  expiration  of  such  periods  after  notices  have 
been  given  as  may  be  required  in  such  treaties  and  conventions.92 

A  great  many  treaties  were  thus  affected  by  the  Act,  and 
as  most  of  them  did  not  contain  any  provision  permitting  a 
partial  abrogation,  such  as  was  contemplated  by  Section  16, 
the  State  Department  was  faced  with  a  difficult  task  in 
adjusting  these  treaties  to  the  law  as  passed  by  Congress. 

As  yet,  the  Act  has  given  rise  to  no  serious  international 
complications,  probably  due  to  the  fact  that  it  is  generally 
not  being  enforced,  but  with  the  readjustments  consequent 
upon  peace  it  is  to  be  expected  that  the  various  foreign  gov- 
ernments will  possess  more  opportunity  to  inquire  into  the 
law,  which  in  all  likelihood  escaped  their  particular  notice 
during  the  time  of  its  enactment  while  these  leading  powers 
were  at  war  and  otherwise  engaged.  Should  the  Federal 
officials  themselves  adopt  a  policy  of  strict  enforcement,  espe- 
cially of  Section  13,  no  one  can  doubt  but  that  very  strong 
diplomatic  pressure  will  be  brought  by  the  foreign  govern- 
ments to  the  end  that  Congress  may  be  forced,  either  through 
sheer  weight  of  opposition  or  through  corresponding  retali- 
atory measures  against  American  ships,  to  repeal  some  of  the 
provisions  of  this  Act  or  at  least  leave  them  unen forced. 

92  As  to  the  time  of  taking  effect,  sec.  18  provides  that  the  act  will 
begin  to  run  against  foreign  vessels  twelve  months  after  its  passage, 
except  that  such  parts  as  were  in  conflict  with  treaties  or  conven- 
tions should  take  effect  as  regards  the  vessels  of  such  countries  on 
the  expiration  of  the  period  fixed  in  the  notice  of  abrogation  pro- 
vided for  in  sec.  16. 


TABLE  OF  CASES 


Taylor  vs.  Carryl,  20  How.,  583 106 

The  Adriatic,  258  Fed.  R.,  902 79,  94 

The  Appam,  243  U.  S.,   125 112 

The  Athanasios,  228  Fed.  R.,  558 79 

The  Athol,  I  Wm.  Robinson,  382  (1842) 62,  69 

The  Attualita,  238  Fed.  R.,  909 77,  82,  in 

The   Barnstable,    181   U.   S.,   464 71 

The  Belfast,  7  Wall.,  624 26 

The  Belgenland,  114  U.  S.,  368 82,  no,  in 

The  Belgier,  246  Fed.  R.,  966 122 

The  Black  Heath,  195  U.  S.,  361 18 

The  Blaireau,  2  Cranch,  240 in 

The  Broadmayne   (1916),  P.  D.,  65 80,  93 

The   Carlo  Alberto 104 

The  Carlo  Poma,  259  Fed.  R.,  369   (U.  S.  Supreme  Ct,  Feb. 

28,   1921) 78 

The  Charkieh,  L.  R.  4  A.  &  E.,  59 74 

The  Chattahooche,  173  U.   S.,  540 117 

The  Chusan,  2  Story,  455 36 

The  Constitution,  L.  R.  24  P.  D.   (1879) ,  39 60 

The  Daniel  Ball,  10  Wall.,  557 17 

The  Davis,  10  Wall.,   15 89,  91 

The  Elwine  Kreplin,  9  Blatchford,  438 no 

The  Emulous,   i   Gal.,  563 12 

The  Errisos,  Lloyds  List,  Oct.  24,  1917,  pp.  5-8 81 

The  Ester,  190  Fed.  R.,  219 109,  no 

The  Fidelity,  16  Blatchford,  569 69,  70 

The  Florence  H.,  248  Fed.  R.,  1012. 86 

The  Genesse  Chief,  12  How.,  443 17 

The  Germanic,  196  U.  S.,  589 117 

The  Glide,  167  U.  S.,  606 26 

The  Golubchick,  i  W.  Rob.,  143 106 

The  Grief swald,   i   Swabey,  430 112 

The  Hamilton,  207  U.  S.,  398 22,  48 

The  Howard,   18  How.,  231 105 

The  Howell,  257  Fed.  R.,  578 45 

The  Imberhorne,  240  Fed.  R.,  830 121 

The  Invincible,  2  Gallison,  29 62 

The  Ixion,  237  Fed.  R.,  142 121 

The  Kensington,  183  U.  S.,  263 116,  124 

The  Jassy,   1906  P.  D.,  270 75,  93 

The  Jerusalem,  2  Gall.,  191 ill 

The  Johann  Friederich,  i  W.  Rob.,  35 112 

The  John  G.  Stevens,  170  U.  S.,  120 71 

The  Lake  Monroe,  250  U.  S.,  246 ' 85 

The  Leon  XIII,  8  Prob.  Div.,  121 109 

The  Lord  Nelson,  Edw.  Adm.,  79 62 

134 


TABLE  OF  CASES  135 

The  Lottawanna,  21  Wall.,  558 22 

The  Luigi,  230  Fed.  R.,  493 93 

The  Maggie  Hammond,  9  Wall.,  435 108 

The  Maipo,  252  Fed.  R.,  627;  259  Fed.  R.,  367 63,  64,  76,  77 

The  Marquis  of  Huntly,  3  Hagg.,  247  (1835) 91 

The  Mavisbrook,  270  Fed.  R.,  101 1 85 

The  Messicano,  32  T.  L.  R.,  519 81 

The  Moses  Taylor,  4  Wall.,  411 23,  32,  43 

The  Newton,  French  decision,  see  Phillimore,  Int.  L.,  3rd 

Ed.,  484 103 

The  Pampa,  245  Fed.  R.,  137 63,  76 

The  Parlement  Beige,  L.  R.  5  P.  D.,  197  (1880),  215....  67,  68,  73 

The  Pesaro,  U.  S.  Supreme  Court,  Feb.  28,  1921 78 

The  Plymouth,  3  Wall.,  20 51 

The  Poughkeepsie,  162  Fed.  R.,  494 18 

The  Prins  Frederik,  2  Dodson,  451 60 

The  Resolute,  33  L.  T.,  8a 62 

The  Rhine,  250  Fed.  R.,  180 123 

The  Roanoke,  189  U.  S.,  185 23,  35 

The  Roseric,  254  Fed.  R.,  155 83 

The  St.  Jago  de  Cuba,  9  Wheat,  409 91 

The  St.  Oloff,  2  Pet.  Adm.,  433 109 

The  Sally,  French  decision,  see  Phillimore,  Int.  Law,  3rd  E.,  484.  103 

The  Santissima  Trinidad,  7  Wheat,  283 60 

The  Scarpen,  1916  P.  D.,  303 80 

The  Scotland,  105  U.  S.,  24 117 

The  Siren,  7  Wall.,  152 68,  69,  91 

The  State  of  Maine,  22  Fed.  R.,  733 122 

The  Tempest,  French  deiision,  Court  of  Cassation 103 

The  Thos.  A.  Scott,  10  L.  T.  (N.  S.),  726 62 

The  Two  Friends,  I  Ch.  Rob.,  271 in 

The  Western  Maid,  U.  S.  Supreme  Court,  January,  1922 84,  86 

The  Yankee  Blade,  18  How.,  82 27 

Torfrida  vs.  Porto  Alexandre,  Lloyds  List,  L.  R.,  vol.  i,  p. 

191    (1919) 81 

Union  S.S.  Co.  vs.  Nottingham,  17  Gratt,  115 30 

U.  S.  vs.  Beavans,  3  Wheat,  336 49 

U.  S.  vs.  Bennett,  3  Hughes,  466 102 

U.  S.  vs.  Davis,  2  Sumner,  482 102 

U.  S.  vs.  Holmes,  5  Wheat.,  412 100 

U.  S.  vs.  Kessler,  i  Baldwin,  15 101 

U.  S.  vs.  Lee,  106  U.  S.,  196 68 

U.  S.  vs.  Lewis,  36  Fed.  R.,  449 100 

U.  S.  vs.  Macdaniel,  7  Pet,  16 91 

U.  S.  vs.  Palmer,  3  Wheat,  630 100 

U.  S.  vs.   Peters,  5  Cranch,   115 68 

U.  S.  vs.  Ringgold,  8  Peters,  150 91 

U.  S.  vs.  Rodgers,  150  U.  S.,  249 102 

U.  S.  vs.  Smiley,  6  Sawyer,  640 105 

U.  S.  vs.  Wilder,  3  Sumner,  308 66,  76,  90 

Vance  vs.  Vandercook  Co.,  170  U.  S.,  438 25 

Vavasseur  vs.  Krupp,  9  Ch.  D.,  351 92 


136  TABLE  OF  CASES 

Watts  vs.  Unione  Austriaca,  248  U.  S.,  9 113 

Walker  vs.  Clyde  S.S.  Co.,  244  U.  S.,  255 27 

Waring  vs.  Clarke,  46  U.  S.,  441 15 

Western  Union  Tel.  Co.  vs.  Call  Publishing  Co.,  181  U.  S.,  92. .  37 

Wheaton  vs.  Peters,  8  Pet.,  591 37 

White  vs.  John  W.  Cowper  Co.,  260  Fed.  R.,  350 46 

Wildenhus  Case,  120  U.  S.,  1 103 

Workman  vs.  New  York,  179  U.  S.,  552 23,  70 

Young  vs.  Scotia,  1903  A.  C,  501 75 


VITA 

Edgar  Tremlett  Fell  was  born  in  Baltimore,  Maryland, 
February  6,  1895,  and  received  his  early  education  in  private 
schools  in  Annapolis,  Maryland.  He  entered  St.  John's 
College,  Annapolis,  in  1909,  receiving  the  degree  of  A.B. 
from  that  institution  in  1913,  and  the  Master's  degree  in 
1917.  During  191 3- 1914  he  taught  History  and  Geography 
in  Chew's  Preparatory  School  for  the  U.  S.  Naval  Academy, 
and  in  1914  was  Attache  at  the  American  Embassy  in  Mad- 
rid, Spain.  He  entered  the  Law  School  of  the  University  of 
Maryland  in  1914,  receiving  the  degree  of  LL.B.  from  that 
university  in  1917,  and  was  admitted  to  the  Maryland  Bar 
the  same  year.  He  was  a  graduate  student  in  the  Johns 
Hopkins  University,  1914-1917,  pursuing  graduate  courses 
in  Political  Science,  Law  and  Political  Economy.  In  1917 
he  was  commissioned  in  the  United  States  Army,  and  served 
one  year  in  France  as  Captain  of  Infantry  with  service  on 
the  General  Staff.  He  was  appointed  Assistant  Professor 
of  History  and  English  at  St.  John's  College,  1919-1920,  and 
also  Acting  Military  Commandant  of  the  Corps  of  Cadets. 


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